Divorce Lawyer

Stephen K. Underwood

Attorney at Law

716-656-7676

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NY Divorce Lawyer
Serving The WNY Area

If you want a divorce and are searching for an experienced Divorce Attorney, near Buffalo, New York, look no further.

What can a Divorce do?

1) Disolves the marriage (usually using NO Fault as Grounds).

2) Determines Custody, Visitation, and Child Support.

3) Divides the Marital Property.

4) Determines Alimony (spousal maintenance).

5) May award an Order of Protection (if needed).

6) May determine who gets to stay in the marital residence.

7) Allows you to change your name back to a prior surname or maiden name.

How much does a divorce cost?

The cost depends whether the divorce is contested or uncontested (whether the parties agree or not).

In all divorces the court costs for a divorce in the State of New York are $350.00.

Attorney fees for a CONTESTED DIVORCE (parties can't agree on terms) vary widely depending on the circumstances. Some lawyers require an initial retainer of $5,000.00 or more, while others as little as $2500.00.

Attorney fees for an UNCONTESTED DIVORCE are less because the parties do not have to appear in Court. If you and your spouse have a verbal agreement regarding the terms of your divorce an Uncontested Divorce may be the best option for you.

If you are seeking a Divorce and are searching for an experienced Divorce Attorney, look no further and contact me above by getting your FREE phone or email consultation.



1395 Union Road West Seneca, NY 14224

Divorce

Stephen K. Underwood

Attorney at Law

716-656-7676

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Divorce

Are You Eligible to File for Divorce in New York State?

In order to file for divorce in New York state you must meet the residency requirements and have Grounds for Divorce.

You meet the residence requirements if:

1) You or your spouse has lived in New York State for the last two years and continues to reside in NY, OR

2) You and your spouse live in New York at the time you file for divorce and the grounds for divorce occurred in New York. OR

3) You or your spouse has lived in New York State for the last one year, and you were married in NY or you lived in New York during your marriage, or the grounds for divorce occurred in NY.

What are the Grounds for Divorce in NY?

The Grounds in NY are as follows:

1) Cruel and Inhuman Treatment – Physical or verbal abuse that occurred in the last 5 years such that it rendered it unsafe and improper to continue to cohabit with your spouse.

2) Abandonment – One spouse abandons the other for a period of one or more years by moving away from the home, refusing entry to the home, or refusing sexual relations.

3) Three Years Imprisonment - Spouse has been in jail for three consecutive years.

4) Adultery – Proof Required.

5) Conversion - live separate and apart for one year pursuant to separation agreement or judicial order.

6) No Fault - Marrage is Irretrievably Broken.

What does a divorce accomplish?

1) Disolves the marriage.

2) Determines Custody, Visitation, and Child Support.

3) Divides Marital Estate - Those items of property obtained during the marriage.

4) Determines Spousal Maintenance (Formerly Called Alimony).

5) Orders of Protection.

6) Exclusive use and ocupancy of the marital residence.

7) Name Change - Allows a party to go back to prior surname or maiden name.

If you are seeking a Divorce and are searching for an experienced Divorce Attorney, look no further and contact me above by getting your FREE phone or email consultation.

1395 Union Road West Seneca, NY 14224

Separation

Stephen K. Underwood

Attorney at Law

716-656-7676

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Separation

What If You and Your Spouse Separate?

When you and your spouse physically separate, one thing you can do is enter into a Separation Agreement. A Separation Agreement is a written contract between you and your Spouse that resolves all of the issues of the marriage including Child Support, Maintenance (formerly called alimony), Custody, Visitation, and the Division of Marital Property. If the parties later wish to get Divorced, the Separation Agreement (if duly recorded with the County Clerk) can serve as Grounds for Divorce.

The problem with a separation agreement is that you have to be able to come to an agreement (unless you want to sue for a Judgment of Separation) and you will have to pay for services twice if you later want to get divorced. If you can come to an agreement now you may as well save money and do an Uncontested Divorce using NO FAULT as your grounds for Divorce.

Separation by Agreement

The Separation Agreement is a detailed written agreement that should be prepared by an Attorney. The agreement says that the parties will live separate and apart according to the agreement with respect to Child Support, Maintenance Custody, Visitation, and the Division of Marital Property.

The Separation Agreement is signed and is filed with the County Clerk. After one year passes, the separation agreement may serve as grounds to convert the separation into a divorce.

Judgment of Separation

Another form of separation in New York is through a Judgment of Separation granted by the Supreme Court. This judgment is based on having grounds for separation.

If you are seeking a Divorce and are searching for an experienced Divorce Attorney, look no further and contact me above by getting your FREE phone or email consultation.

1395 Union Road West Seneca, NY 14224

Child Custody

Stephen K. Underwood

Attorney at Law

716-656-7676

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Child Custody

What Type of Child Custody Should be Choosen?

Sole Custody - Sole Custody is when the children primarily reside with one parent and that parent makes all the decisions related to health, education, religion, and welfare of the children.

Joint Custody/Primary Residential Parent - The children primarily reside with one parent but decisions related to health, education, religion, and welfare of the children are decided by both parents together.

Joint Custody - The parents split physical custody and decisions related to health, education, religion, and welfare of the children are decided by both parents together.

To avoid disagreement, it is increasingly more common for parents who choose Joint Custody to agree that one parent makes all decisions about education, and the other parent makes all the decisions about health, (or something similar).

If the Parents can not Agree on Custody, What does the Court Consider in Decidiing which Parent Gets Cusody?

The Court will consider what is in the "best interest of the child."


What Factors does the Court Consider to determine the "Best Interest of the Child"?

1) Is there Domestic Violence in the Household.

2) Who was the primary caretaker of the children.

3) Who is the better parent.

4) What is the nurturing ability of each parent.

5) Which parent has better judgment.

6) The desirability of keeping siblings together.

7) The wishes of the child, if the child is of sufficient age.

8) The lifestyle of each parent.

9) The religion of each parent.

10) Whether each parent will encourage or discourage visitation with the other parent.

11) The Continuity of a stable environment.

12) The age of the child.

13) The Substance abuse or chemical addiction of either of the parents.

14) The quality of each parent's home environment.

15) The parental guidance each parent provides to the child.

16) The ability of each parent to provide for the child's emotional and intellectual development.

17) The financial status of each parent, and their ability to provide for the child.

18) The relative fitness of the respective parents including their mental condition.

19) The length of time the present custody arrangement has been in effect.

20) A parent's sexual behavior, character and lifestyle (only if it directly affects the child)

If you are seeking a Divorce and are searching for an experienced Divorce Attorney, look no further and contact me above by getting your FREE phone or email consultation.

1395 Union Road West Seneca, NY 14224

Child Visitation

Stephen K. Underwood

Attorney at Law

716-656-7676

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Child Visitation

Child Visitation Schedule?

The best Visitation Schedule is the one that is appropriate under the circumstances.

If you are seeking a flexible schedule, and the parties get along well for the sake of the children, you can keep the schedule flexible by agreeing that visitation will take place as the parties agree. The problem with this schedule is that you may not always be able to agree.

If you would rather have a set schedule to avoid conflict, you may want to set a specific visitation schedule. A common schedule is for the non-custodial parent to have custodial access on alternating weekends from Friday evening through Sunday evening, a weeknight for a few hours every week, alternate major holidays, split the child's winter and spring breaks from school, and each party to receive two to four uninterrupted weeks in the summer, fathers day, and mothers day. The problem with this schedule is the lack of flexibility.

If parents live far apart and regular weekend visitation is not practical, it is common to allocate more summer vacation and school holidays to the non-custodial parent so that the child will spend substantial uninterrupted time with the non-custodial parent. The costs to transport the child may also be an issue.

If the non-custodial parent is unstable, or addicted to alcohol or drugs, or has abused or neglected the children, then you may want to seek a supervised visitation schedule. Supervision to be done by a third party or agency.

If you are seeking a Divorce and are searching for an experienced Divorce Attorney, look no further and contact me above by getting your FREE phone or email consultation.

1395 Union Road West Seneca, NY 14224


Child Support

Stephen K. Underwood

Attorney at Law

716-656-7676

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Child Support

How much will be paid for Child Support in New York State?

The Child Support payable in New York State can sometimes be difficult to calculate, but is usually paid by the non-custodial parent to the custodial parent for the support of the children. My CHILD SUPPORT CALCULATOR makes it easy to calculate.

The "Custodial Parent" of a child, is the parent that has the child for a majority of the overnights during the year. It is not based on legal custody or decision-making power. If the parents have an equal number of overnights, the party with the lower income is deemed to be the "custodial parent" see Leonard v Leonard (4th dept),2013 NY Slip Op 04916 [109 AD3d 126], Rubin v Della Salla (1st Dept), 2013 NY Slip Op 02681 [107 AD3d 60].

The amount payable is calculated by using the Child Support Standards Act (CSSA) of the State of New York. The CSSA takes into account the gross incomes of both parents, and the appropriate deductions for the Federal Insurance Contributions Act (FICA) and SECA (if self employed). There may also be other deductions besides FICA and SECA including maintenance payments and city taxes. The CSSA contemplates the first one-hundred forty-three thousand dollars of combined parental income. Income is based on the most recent income tax return.

The non-custodial parent's annual "basic child support obligation" is generally calculated by multiplying the non-custodial parent's "percentage of combined gross income", by the combined gross incomes of the parents, less: the non-cusodial parent's deductions multiplied by the appropriate "child support percentage".

A parent's "percentage of combined gross income" is equal to the parent's gross income, divided by the combined gross incomes of both parents.

The "child support percentage" is as follows:

a) 17% for one child
b) 25% for two children
c) 29% for three children
d) 31% for four children, and
e) no less than 35% for five or more children.

Once you get the figure for the annual payment, divide by twelve for a monthly payment, divide by twenty-six for a bi-weekly payment, or divide by fifty-two for a weekly payment.

Child support stops when a child reaches the age of 21 or is earlier emancipated. The parents may agree to support their children beyond the age of 21, for example, until the children graduate from college.

What Other Child Support Gets Paid?

In addition to the payment of the "basic child support" obligation, typically one parent will be responsible for providing healthcare insurance for the children.

Usually each parent will be responsible for paying a pro-rata share of the uninsured medical and dental costs.

Usually each parent will pay a pro-rata share of the childcare expenses incurred while the custodial parent is working or attending school.

The pro-rata share is equal to the parent's percentage of combined gross income.

In addition, the non-custodial parent may also agree to purchase a life insurance policy on his or her life, naming the custodial parent or the children as irrevocable beneficiaries, to secure future child support payments.

Can the Parents Agree to pay More or Less than the Payment Required by the CSSA?

The parents are free to Opt Out of the CSSA, but any agreement must set forth the amount that is supposed to be paid pursuant to the CSSA, and the reasons for deviating from the formula.

If you are seeking a Divorce and are searching for an experienced Divorce Attorney, look no further and contact me above by getting your FREE phone or email consultation.

1395 Union Road West Seneca, NY 14224r


Spousal Maintenance

Stephen K. Underwood

Attorney at Law

716-656-7676

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Spousal Maintenance

When a divorce is filed in New York, sometimes one party has to pay the other party temporary maintenance while the case is pending and/or post-divorce maintenance payments for a period of time. Usually this occurs when one party is seeking maintence from the other party and they can not come to an agreement. Usually maintenance is sought because there is a substantial disparity in incomes, or when one party stayed home to care for children and lost out on career opportunities, or when one party is disabled and unable to work. The amount and length of time that maintenance payments are made is calculated based on a formula. The formula caps income for each party at $178,000.00, however, the court can award maintenance above ot below the formula based on a number of factors.

How Much Maintenance Should Be Paid in a NY Divorce?

Maintenance is paid based on the incomes of the parties and the maintenance formula. The formula is the same for both temporary and post-divorce maintenance. The party that earns the most income is the payor spouse, and the other party is the payee spouse. The amount of maintenance can be calculated with the my MAINTENANCE CALCULATOR.

If Awarded, How Long Should Maintenance Last?

The length of time that maintenance is payable can be between 15% and 50% of the length of the marriage. The length of time for maintenance payable can be calculated with the my MAINTENANCE CALCULATOR

What are the Tax implications of Maintenance?

Maintenance is taxable income to the party receiving it, and tax deductable to the party that pays it.

How Common is an Award of Maintenance?

Maintenance is common when one party needs some time to gain financial independence. It is less common when each party is capable of self-support, or neither party makes enough money to reasonably make the payment.

If you are seeking a Divorce and are searching for an experienced Divorce Attorney, look no further and contact me above by getting your FREE phone or email consultation.

1395 Union Road West Seneca, NY 14224


Marital Property

Stephen K. Underwood

Attorney at Law

716-656-7676

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Marital Property

What is Marital Property in a NY Divorce?

Domestic Relations Law defines the term "marital property" to mean all property acquired by either or both parties during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held, except as otherwise provided in an agreement (prenuptial or postnuptial agreement), or that which is Separate Property.

What about a Business Interest, College Degree, or Professional License?

In O'Brien v. O'Brien, the New York State Court of Appeals held that a spouse's interest in a profession or professional career potential earned during the marriage, is marital property subject to equitable distribution.

If you are seeking a Divorce and are searching for an experienced Divorce Attorney, look no further and contact me above by getting your FREE phone or email consultation.

1395 Union Road West Seneca, NY 14224


Separate Property

Stephen K. Underwood

Attorney at Law

716-656-7676

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Separate Property

The following property is Separate Property.

1) Property acquired before the marriage or property acquired by bequest, devise, or descent (inheritance), or gift from a party other than the spouse.

2) Compensation for personal injuries.

3) Property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse.

4) Veteran's benefits exempt from attachment, levy or seizure pursuant to the laws of the United States, except when a Veteran has waived a portion of his military retirement pay in order to receive Veteran's compensations.

If you are seeking a Divorce and are searching for an experienced Divorce Attorney, look no further and contact me above by getting your FREE phone or email consultation.

1395 Union Road West Seneca, NY 14224


Equitable Distribution

Stephen K. Underwood

Attorney at Law

716-656-7676

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Equitable Distribution

Equitable Distribution, What is it?

Equitable Distribution is the method that New York State Law uses to distribute marital property upon the dissolution of the marriage. Equitable Distribution basically means what is fair under the circumstances. Equitable Distribution does not mean "equal" distribution of the marital property.

What does the Court look at to determine the Division of Marital Property?

1) Income of each party at time of marriage, and when the divorce action was brought.

2) Property of each party at time of marriage, and when the divorce action was brought.

3) Length of the marriage.

4) Age and Health of each of the parties.

5) The need for the custodial parent to occupy or own the marital residence.

6) The need for the custodial parent to use or own household goods and furnishings.

7) The loss of inheritance rights upon dissolution of the marriage.

8) The loss of pension rights upon dissolution of the marriage.

9) Whether maintenance will be awarded.

10) The equitable claims to the marital property by each party.

11) The direct or indirect contribution to the acquisition of the marital property by each party including the contribution as a spouse, parent, wage earner and/or homemaker.

12) The direct or indirect contribution of one party to the career or career potential of the other party.

13) Whether the marital property can be liquidated.

14) The probable future financial circumstances of each party.

15) The ability to evaluate the asset or interest in marital property.

16) The desirability of retaining the asset or interest, free from any claim or interference by the other party.

17) The tax consequences to each party.

18) The wasteful dissipation of marital assets by either spouse.

19) Any transfer of marital assets, or encumbrances put on marital assets, by either party prior to the commencement of the matrimonial action.

20) Any other factor which the Court expressly finds to be just and proper.

If you are seeking a Divorce and are searching for an experienced Divorce Attorney, look no further and contact me above by getting your FREE phone or email consultation.

1395 Union Road West Seneca, NY 14224

Client's Rights

Stephen K. Underwood

Attorney at Law

716-656-7676

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Statement of Client's Rights

1. You are entitled to be treated with courtesy and consideration at all times by your lawyer and the other lawyers and personnel in your lawyers office.

2. You are entitled to an attorney capable of handling your legal matter competently and diligently, in accordance with the highest standards of the profession. If you are not satisfied with how your matter is being handled, you have the right to withdraw from the attorney-client relationship at any time (court approval may be required in some matters and your attorney may have a claim against you for the value of services rendered to you up to the point of discharge).

3. You are entitled to your lawyer’s independent professional judgment and undivided loyalty un-compromised by conflicts of interest.

4. You are entitled to be charged a reasonable fee and to have your lawyer explain at the outset how the fee will be computed and the manner and frequency of billing. You are entitled to request and receive a written itemized bill from your attorney at reasonable intervals. You may refuse to enter into any fee arrangement that you find unsatisfactory.

5. You are entitled to have your questions or concerns addressed in a prompt manner and to have your telephone calls returned promptly.

6. You are entitled to be kept informed as to the status of your matter and to request and receive copies of papers. You are entitled to sufficient information to allow you to participate meaning fully in the development of your matter.

7. You are entitled to have your legitimate objectives respected by your attorney, including whether or not to settle your matter (court approval of a settlement is required in some matters).

8. You have the right to privacy in your dealings with your lawyer and to have your secrets and confidences preserved to the extent permitted by law.

9. You are entitled to have your attorney conduct himself or herself ethically in accordance with the Code of Professional Responsibility.

10. You may not be refused representation on the basis of race, creed, color, religion, sex, sexual orientation, age, national origin or disability.

If you are seeking a Divorce and are searching for an experienced Divorce Attorney, look no further and contact me above by getting your FREE phone or email consultation.

1395 Union Road West Seneca, NY 14224

Maintenance

Stephen K. Underwood

Attorney at Law

716-656-7676

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Maintenance Calculator

INCOME Husband (SP1) Wife (SP2)
Total Annual Gross Income as a W-2 Wage Earner:
Total Annual Gross Income from Self-Employment:
Total Annual Other Income: Include all income (not SSI or Public Assistance).
DEDUCTIONS Husband (SP1) Wife (SP2)
Total Annual Unreimbursed Employee Business Expenses
Total Annual Alimony or Maintenance Actually Paid to Non-Party Ex-Spouse Pursuant to Court Order or Agreement.
Total Annual Child Support Actually Paid Pursuant to Court Order or Agreement for Non-Party Children.
Total Annual NYC or Yonkers Taxes.
FICA - Calculated Automatically    
Will the Party that has the Higher Income be Paying Child Support to the Party with the Lower Income?  
Length of Marriage in Years  

This New York State Maintenance Calculator is designed to give an estimate of the Temporary and Post-Divorce Maintenance Award by the Court and is based on annual individual income up to a cap of $178,000.00 (if either party's income exceeds $178,000.00 their are additional factors set forth in DRL §236 Part B(6)(d. and e.) that apply in determining any additional award, if any).

The Payor is the party that has the Highest Income, and may have to pay Temporary and/or Post Divorce Maintenance to the other party (payee).

The duration of Payments is Based on the Advisory Schedule.

The purpose of this New York State Maintenance Calculator is for information only. This New York State Maintenance Calculator is based on statutory guidelines, but the Court has the final authority to determine the amount of Maintenance that will be awarded, if any.

The numbers provided are only estimates and are not a guarantee of the actual amount of Maintenance that will be awarded. Other factors may affect the amount of Mantenance awarded. Consult an Attorney for more detailed information.

Note: Calculations are based on the following:

The Maintenance Formula.

Current 2017 Self Support Reserve is = 135% of $12,060.00 (2017 HHS Poverty Level Figure for Single Person Family).

Current 2017 FICA for Wage Earner is 7.65% of Gross Income up to the Maximum Threshold of $127,200.00.

Current 2017 FICA for Wage Earners Above the Maximim Income Threshold is 6.2% of $127,200.00 (Social Security Portion), plus 1.45% of Total Gross Income from Wages (Medicare amount).

Current Self-Employment FICA is equal to 15.3% of 92.35% of Gross Annual Self-Employment Income (Self-Employment Contributions Act), up to the Maximum Threshold of $127,200.00.

Current Self-Employment FICA Above the Maximim Income Threshold is 12.4% of $127,200.00, plus 2.9% of of 92.35% of Gross Annual Self-Employment Income.

The Source for the FICA Information is here.

If you are seeking a Divorce and are searching for an experienced Divorce Attorney, look no further and contact me above by getting your FREE phone or email consultation.

1395 Union Road West Seneca, NY 14224