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Thank you... my husband and I agree we want to divorce. the…

Hi and thank you.....

Hi and thank you... my husband and I agree we want to divorce. My name is ***** ***** deed, but not the mortgage, which he has been paying while I pay similar $$ bills. What are my rights and best options? Thank you!

Lawyer's Assistant: What steps have you taken? Have you filed any papers in family court?

Nothing yet ... want to have my ducks in a row... also, he is an independent contractor- a chef... often gets his pay in cash, which I am sure he hides.. I know because he used to ask me to deposit in my account payments for services rendered... but I am sure that’s a separate issue...

Lawyer's Assistant: Family law varies by state. What state are you in?

NY

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

This is all text right now, correct?

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Answered in 12 minutes by:
5/27/2018
Ray
Ray, Lawyer
Category: Real Estate Law
Satisfied Customers: 48,901
Experience: Texas Attorney for 30 years dealing in real estate
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Hi and welcome to JA. Ray here to help you today.Please bear with me a few moments while I review your question, conduct and prepare your response.

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If he pays you an agreed amount here for your equity you can quit claim it to him and also the decree awards it to him, and you a payment of $$$ for your half interest.You don't sing the deed until decree is done and payment received.This would be the process of dividing assets.

Reference

If only one spouse's name appeared on the title, that spouse received the property. New York is now an equitable distribution state. When a couple divorces, the court must divide their marital property equitably, or fairly. This doesn't necessarily require an equal split of the couple's assets.

New York Equitable Distribution & Divorce: FAQ | DivorceNet

https://www.divorcenet.com/states/new_york/nyfaq04

Spousal support is another issue

In New York, alimony is called “maintenance.” For purposes of this article, the term alimony and maintenance should be used interchangeably.

Pendente Lite” or temporary maintenance

Pendente lite” or temporary maintenance is paid while the divorce case is pending and intended to provide the supported spouse with immediate financial need by taking into consideration the supported spouse’s reasonable needs and the pre-divorce standard of living. Temporary maintenance ends when a final order of maintenance is made by a judge.

Post-divorce maintenance

Post-divorce maintenance is awarded to the supported spouse after the divorce action. Post-divorce maintenance ends by the death of either spouse, the remarriage of the supported spouse or if the supported spouse is habitually living with someone or holding themselves out to be husband and wife with that person.

What Guidelines do Courts use When Determining Alimony (or Maintenance) in New York?

Calculating “pendente lite” or temporary maintenance

In cases that were determined before October 13, 2010, temporary maintenance was awarded based on the court’s discretion and varied on a case-by-case basis. For cases commenced on or after October 13, 2010, the court uses a statutory formula to calculate temporary maintenance, which is based primarily on the spouses’ incomes. This new fixed formula is used to maintain uniformity and consistency when calculating awards.

The formula requires the court to take the following steps to calculate the amount of temporary maintenance:

1) Subtract 20% of the supported spouse’s income from 30% of the paying spouse’s income.

2) Multiply the total income of both spouses by 40% and subtract the supported spouse’s income from that amount.

3) The court will determine the temporary award of maintenance based on the lower amount of (1) or (2).

For example, if the paying spouse’s income is $60,000 and the supported spouse’s income is $30,000, the court would use the following steps:

1) $6,000 (20% of $30,000) is subtracted from $18,000 (30% of $60,000) = $12,000

2) $36,000 (income of both spouses: $30,000 plus $60,000 multiplied by 40%) minus $30,000 (supported spouse’s income) = $6,000

3) Since $6,000 is the lower of the two, this will be the temporary award of maintenance.

This formula is based on an income cap of up to $524,000. If the total income of both spouses exceeds $524,000, the court will consider other factors.

For a list of the factors courts consider, see DRL § 236 Part B (5-a) (C) (2) (a).

Deviating from the guideline

If the court finds that the amount calculated using the above formula is “unjust or inappropriate,” other factors can be taken into consideration, such as:

  • the spouses’ standard of living during the marriage
  • the age and health of both spouses, and
  • both spouses’ earning capacities (meaning how much income they could earn based on education, skills, job history and local employment opportunities).

If a court determines that the calculated amount is “unjust or inappropriate” and finds that a deviation is appropriate, it must identify the adjusted amount, the reasoning for the amount and the factors it considered in a written order.

For a full list of the factors courts consider when a temporary maintenance award is found to be “unjust or inappropriate,” see DRL § 236 Part B (5-a) (e) (1).

Calculating post-divorce maintenance

Courts calculate post-divorce maintenance awards based on a number of factors; unlike temporary maintenance, there is no fixed formula used. The factors considered are:

  • income and property of both spouses
  • length of the marriage
  • age and health of both spouses
  • present and future income of both spouses
  • the ability of the receiving spouse to become self-supporting
  • acts by one spouse which inhibit the other from achieving employment (for example, domestic violence)
  • the existence of a pre-marital joint household
  • loss of income of the receiving spouse as a result of giving up a career (for example, if one spouse stayed home to care for the children instead of working a full-time job)
  • whether there are children from the marriage that live in the marital home
  • whether there are disabled children, adult children, elderly or in-laws that require care
  • additional child-related costs, such as schooling, day care or medical expenses
  • contributions made by the receiving spouse (for example, if the spouse was a home maker and does not receive a fixed income)
  • waste of property by either spouse (for example, if one spouse has wasted or lost marital funds as the result of a gambling addiction)
  • the loss of health insurance benefits as a result of the divorce
  • the tax consequences to each spouse as a result of paying or receiving maintenance
  • any transfer of property by either spouse that is unfair (for example, where one spouse hides assets), and any other factor the court believes is relevant to the decision.

I appreciate the chance to help you tonight.Thanks

If you can positive rate 5 stars it is much appreciated.

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Customer reply replied 2 months ago
I do have follow ups and I will request you again and give you 5 stars... just can’t right this second- thank you so much

No problem ,thanks

Ray
Ray, Lawyer
Category: Real Estate Law
Satisfied Customers: 48,901
Experience: Texas Attorney for 30 years dealing in real estate
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