If my husband and I do not live together are we considered legally separated?

Full Question:

I have been married to my spouse for three years but we separated (he left) four months after we married. We have two children and I am carrying our third at this time. Are we considerred legally separated since we have not lived together in almost three years? Also, he has never paid child support. Does he have any rights as far as custody of our children? Lastly, what is the approximate cost of a divorce involving children but no joint property or assets?
03/01/2007   |   Category: Divorce   |   State: New York   |   #762


One of the grounds for divorce in New York is the abandonment of the plaintiff by the defendant for a period of one or more years. However, a married couple living apart is not legally separated regardless of how long they live apart. There are two ways to become legally separated in New York. The first, and by far the most common way, is by having both the husband and wife sign a separation agreement. In signing a separation agreement, the agreement must have certain language and be notarized. The agreement should contain the terms of how financial and property issues are to be resolved. In addition, if there are children involved, the agreement should contain the terms of custody, visitation, child support, medical insurance coverage, and all other related issues.

Under New York law, basic child support is calculated in two parts: (a) the support based on the total combined income of both parents up to $80,000; and (b) the support based on the total combined income of both parents over $80,000.

The following is a step-by-step example of child support calculation is as follows:

1. Combine both parents’ adjusted gross income. Income consists of gross (total) income as should have been or should be reported in the most recent federal income tax return; investment income reduced by sums expended in connection with such investment; workers’ compensation; disability benefits; unemployment insurance benefits; Social Security benefits; veterans benefits; pensions and retirement benefits; fellowships and stipends; and annuity payments.

2. For both parents’ combined adjusted gross income, apply the statutory percentages based on the number of children between the parties to the first $80,000. The result will be the total combined basic child support attributable to both parents for the first $80,000 of combined income.

One child - 17%

Two children - 25%

Three children -29%

Four children - 31%

Five children - no less than 35%

3. For both parents’ combined adjusted gross income over $80,000, the court has the discretion to apply the same statutory guidelines, and for all practical purposes will do so. The result will be the total combined basic child support attributable to both parents for the combined income in excess of $80,000. Many courts will often apply the guidelines to the first $150,000 of the non-custodial parent’s income, although technically, the amount should be applied to the combined parental income.

4. From the combined basic child support as calculated under steps three and four, allocate a pro-rata share of the combined basic child support to each parent. Each parent’s pro-rata share is a ratio equal to that parent’s adjusted gross income divided by the combined adjusted gross income for both parents.

5. In addition to the basic child support, each parent is responsible for certain add-ons, which are unreimbursed medical expenses, and day care expenses, provided the custodial parent is working or is in school.

Regarding custody, factors that a court considers include:

1. Status Quo: If parents have been living apart and have established a pattern of the parent with whom the children live, the court might be inclined to continue that arrangement.

2. Siblings: The court usually prefers to keep siblings together except in instances where the children's needs differ substantially. In that case, the court might be inclined to split them between parents.

3. Environmental Stability: The court prefers to keep children in the same neighborhood, the same school and near the same friends. If one parent chooses to move out of the neighborhood, that becomes a factor for court consideration.

4. Wealth of the Parent: Is the quality of the home suitable? Is there suitable space? What about cleanliness, neighborhood safety, quality of available healthcare, access to religious institutions? Each of these factors will be considered.

5. Parental Stability: Is the proposed custodial parent stable? Is there a history of mental illness, drug or alcohol abuse, and promiscuity? Is there a criminal history or a history of violence toward self or child?

In order to rule in the best interests of the child, the court must be concerned with the stability and judgment of the parents as well as the quality of the relationship between parent and child. Sometimes the choice is complicated by the age and sex of the child. For example, older boys may prefer to live with their father regardless of negative factors. But since the court, in general, encourages parents to promote a two-parent relationship, this kind of preference need not upset the general criteria.

A simple uncontested divorce may cost anywhere from $250 to $2500, in addition to court fees, depending on whether an agreement has to be prepared. Where the divorce is contested attorneys usually charge at an hourly rate, ranging from $175 an hour for inexperienced attorneys to $450 an hour for the most experienced experts in the field. An experienced lawyer can tell a prospective client the minimum that can be expected, but the maximum will depend on whether or not both parties are cooperative. You can help an attorney give the best estimate by being honest in assessing the issues and the relationship you have with your husband. You can keep fees down by communicating efficiently with your attorney. Email is great; your attorney can read it when it is convenient and when he or she has enough time to respond (as opposed to unscheduled phone calls). Keep notes and records. Make outlines. Respond promptly to questions from your attorney. Insist on detailed bills and review them promptly after you receive them. If you have questions about your bills, ask! Pay your bills promptly, and if you can’t, be honest and tell your attorney your situation. Unless money is no object, be careful where several attorneys will work on your case. This sometimes leads to a lot of “intra-office conferences” which you will be expected to pay for, and which usually simply means that one attorney is telling the other what is going on in the case.

Ask Legal Question

Your Privacy is 100% Confidential!