Family Law

Family law is the area of law that deals with marriage and divorce, custody, paternity, spousal and child support, along with the issues that come up when you get married, have children, and perhaps get divorced. Family law also covers adoptions, guardianship, domestic violence, and grandparents’ rights.

Marital agreements are the contracts you and your spouse can enter into before your marriage (“prenuptial agreement”), during your marriage (“postnuptial agreement”), and if you decide to end your marriage (“separation or settlement agreement”).

If you and your spouse decide not to stay together, you have the following options:

• Annulment – which is a legal action where you challenge the validity of the marriage on specific grounds and ask the court to declare that the marriage should be undone, as if it never happened;
• Divorce – which is a legal action where you seek to have your marriage dissolved; or
• Legal Separation – which is a legal action where you seek a court ruling that you and your spouse are going to live separately and apart from each other without actually getting divorced.

A decision to end your marriage or separate from your spouse results in many other decisions that you and your spouse must make. First, you need to figure out your property rights. You and your spouse may have owned property when you got married and you may have obtained property while you were married. This property needs to be divided up when you decide to end your marriage.

Depending on whether you or your spouse is able to financially take care of yourself, your divorce/separation case may involve maintenance. This is sometimes called “alimony” or “spousal support.” Maintenance can be:

• a temporary payment during the annulment or divorce lawsuit,
• a payment for a set period of time, or
• a permanent payment.

There is a legally determined formula for temporary maintenance that the court is required to apply unless it determines it to be inappropriate. There is a formula for post divorce maintenance, including legally established law as to the length of the maintenance award based on the length of the marriage. If you and your spouse are unable to agree, it is up to the court to decide what is fair and reasonable under the circumstances of your marriage.

Sometimes your circumstances or those of your spouse may change after the court orders maintenance, and you or your spouse may be able to get the court to change the award. This is called a modification. Under certain circumstances, the court may also order one spouse to pay the attorney’s fees of the other spouse, particularly if there is a difference in the income and assets between you and your spouse.

If you and your spouse have minor children, then your divorce/separation will involve other additional issues related to the children, such as custody, visitation, and child support. If you and your spouse are unable to agree on these issues, the court will decide how much time the child or children will spend living with each parent, which is called child custody/visitation. The court will also determine if the parent who has the child/children the majority of the time should receive money from the other parent in order to help care for the child/children. This is called child support. These issues can also arise when unmarried people have children together. However, if there is a denial of being the father, a paternity proceeding is required. In such a case, the court generally requires DNA testing to determine the probability of paternity of the person being charged as the father.

Sometimes violence and/or harassment can happen between family members. In these situations, the court can issue an order of protection, which protects you from abuse by someone close to you.

There are two different court systems in New York that deal with family law:

• Supreme Court – If you are seeking a divorce, annulment or separation, you will file your case in Supreme Court in the county where you or your spouse lives. As part of the divorce/separation, the Supreme Court can also decide issues related to maintenance, child support, and child custody/visitation.
• Family Court – If you are not seeking a divorce or separation, you can file your case in family court, which handles the following situations:

• • Making, modifying, and enforcing maintenance and child support orders;
  • Making and modifying child custody/visitations orders;
  • Granting orders of protection; and
  • Determining paternity of a child.

Legal Editor: Elliot Polland, April 2015 (updated June 2020)