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Frequently Asked Questions

Family Law FAQs

Criminal Law FAQs

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Family Law FAQs

What factors does the court consider to divide marital property?

  • Length of the marriage
  • Any prior marriage of either party
  • Age, health, station, income, vocational skills, employability, estates, liabilities, and needs of each party
  • Contribution by one party to the education, training, or increased earning power of the other party
  • Opportunity of the parties to acquire future income and assets Sources of income, including medical, retirement, insurance, and other benefits
  • Services of each party as a parent, wage earner, or homemaker
  • Value of each party’s property
  • Standard of living established during the marriage
  • Tax consequences of the distribution
  • Designation of the custodial parent

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My partner and I have agreed to split up. What is the law about dividing up our property?

Separating partners who are not married to each other are not legally entitled to property division or spousal support unless they have made an agreement about it.

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My ex is behind on alimony and child support. What recourse do I have?

You can go to the court clerk’s office in the court that ordered child support and request the clerk issue a garnishment against the supporting parent’s wages. To do this, you need to know your ex’s place of employment, address, and Social Security number. If your ex is at least one month behind, the court sends a garnishment to the employer and the support will be taken out of his or her paycheck. You could also go after your ex’s property, but this is a longer process and might not be as satisfying, since cars and homes are often leased and mortgaged. Another option is to file a petition for contempt and get an order to show cause why the payments are not being made. This puts your ex back in court. A skilled family law attorney can review the options with you and guide you to the best solution for your needs.

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I am an unmarried father. Can I get custody of my child?

Family court has jurisdiction of non-married couples. If an unmarried couple who has a child separates, the father can take action to seek custody. To do so requires demonstration of your commitment to having a relationship with your child—your involvement and participation in raising the child. Ultimately, family court decides who the child’s primary caretaker is and the child’s best interests.

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What are my rights as an unwed father?

Family court has jurisdiction of non-married couples. If you are an unwed father, family court can require you to pay child support if it determines that you are, in fact, the father or if you acknowledge you are. As such, you have the right to child visitation and you may seek child custody.

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I am the custodial parent. Can I deny visitation?

The purpose of visitation rights is for children of a divorced couple to understand they have two parents who are entitled to love their children and be loved in return. If the children come back from a weekend with their non-custodial parent and are upset or tell you they do not want to go anymore, that is not reason to deny visitation unless their health and welfare are endangered by the visitation. If you are having a disagreement with your ex or harbor ill feelings, that is not reason to deny visitation. However, the noncustodial parent is entitled to reasonable visitation. That means if he or she wants to see your child in the middle of the night or is drunk or stoned, you do not have to permit visitation.

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How is child support calculated?

New York state guidelines determine the amount of money the non-custodial parent pays for child support. Both parents must financial affidavits, tax returns, pay stubs, and W2 forms. If the parents’ total combined income, minus a certain set of deductions, is $80,000 or less, the state applies a set of percentages based on the number of children:

  • One child, 17%
  • Two children, 25%
  • Three children, 29%
  • Four children, 31%
  • Five children, not les than 35%

If the adjusted gross parental income is more than $80,000 the court may decide to modify these guidelines. An attorney well versed in the complicated nature of child support calculations in New York can guide you through the steps involved.

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I have been divorced for a while and would like to change some of the provisions in the divorce decree. If my ex and I agree, would the changes be valid?

After your divorce, you might find it necessary or desirable to modify one or more of the stipulations in your divorce decree, property settlement, or custody and support arrangements. You must follow proper procedure if you want that modification or set of modifications to be valid. An experienced family law attorney can work with you to ensure your desired changes are valid.

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Criminal Law FAQs

What constitutes drunk driving?

Drunk driving is an umbrella term for:

  • Driving while intoxicated (DWI)
  • Driving while under the influence (of alcohol or drugs) (DUI)
  • Driving while impaired
  • Operating under the influence (OUI)

A blood alcohol content of 0.08 is the legal limit in New York for drinking and driving charges.

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Do I have to take a sobriety test?

Generally, yes. Police may conduct field sobriety tests to assess if you are under the influence of drugs or alcohol. They test your balance, coordination, and mental state to determine intoxication. Test results can be used as evidence.

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If the police want to question me, do I have to talk to them?

No. A detective may leave a business card, phone message, or some other notice that they want to talk to you, but you do not have to speak to the police unless they have a warrant. You do not have to speak to the police without a warrant or without a lawyer.

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What is the difference between misdemeanors and felonies?

A misdemeanor is typically a minor or nonviolent crime punishable by probation, jail time of less than one year, community service, counseling, restitution, and monetary fines
A felony is a serious criminal offenses including bodily harm to another person or large sums of money. A felony conviction can result in a prison term of more than a year, lengthy probation, immense fines or even the death penalty.

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What is the difference between state crime and federal crime?

State crimes are violations of state law. Federal crimes are violations of federal law. If a crime crosses state lines or involves a federal employee, it qualifies as a federal crime, investigated by federal law enforcement and punishable by time in a federal prison.

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