Family law and divorce law get used interchangeably, but they are not the same thing. Divorce law is one part of family law, and knowing which one your situation actually falls under affects who you should be hiring.
This guide explains what family and divorce law are, where they overlap in New York State and how to determine which type of attorney you need to represent you.
What Is Family Law?
Family law is a general term that refers to the laws that apply to the family and relationships between family members. It is not just for couples who are separating or married. Family law, on the other hand, is very much involved in almost any legal matter that can present itself between individuals who are married, blood relatives, or living together in the same household. Divorces, separations, and other cases involving family law are common occurrences in Buffalo and Erie County, New York, where family law attorneys are regularly engaged in cases involving:
- Child custody and visitation rights
- Child support payments and adjustments
- Spousal maintenance (commonly known as alimony)
- Paternity establishment
- Adoption proceedings
- Family law guardianship of minors or incapacitated adults
- Domestic violence protective orders.
- Prenuptial and postnuptial agreements
- Grandparent visitation rights
- Juvenile delinquency and PINS (Persons in Need of Supervision) cases.
Family law is such a broad area that lawyers may make a career out of assisting individuals with the often highly emotional issues that don’t necessarily involve divorce. All of the above require no divorce filing and are family law issues: grandparent seeking visitation, unmarried parent establishing paternity, couple making a prenuptial agreement before marriage.
What is divorce law?
Divorce law is a particular segment of family law which is composed of merely divorcing the marriage. People looking for a divorce lawyer Buffalo NY will usually be looking for someone who focuses on the issues that will occur in the process of a marriage being dissolved. This includes:
- Filing for divorce (contested or uncontested)
- Establishing grounds for divorce under New York law
- Property division, and the division of debts (equitable distribution)
- Determining spousal maintenance
- Negotiating or litigating child custody as part of the divorce
- Completing child support in the divorce judgment.
- Handling separation agreements
- Controlling the disclosure journey for financial information
- Representing clients in divorce mediation or collaborative divorce
Family law and the court process converge more closely than anywhere else in divorce law. While a divorce case in New York typically involves aspects of general family law custody, support and property distribution the case is begun and concluded in a specific process that is defined by New York’s Domestic Relations Law.
The Overlap: Why the Terms Get Confused
People often use the terms “family law” and “divorce law” both synonymously because oftentimes, divorce cases involve the issues of custody, child support and maintenance all at once. When a New York couple with children gets divorced, the court doesn’t only dissolve the marriage, it also must allocate decision-making, parenting time and financial support. This can result in almost all of the subcategories of family law being applicable to one case.
As a result of this overlap, the majority of attorneys who advertise themselves as a divorce lawyer Buffalo NY will likewise practice general family legislation, and the other way round. It’s very common for Buffalo law firms to advertise both specialties as they share the same skill sets and knowledge. A divorce attorney who specializes in negotiating custody terms is applying the same skills that he or she would in a custody modification proceeding.
Key Differences That Matter for Your Case
While there may be some overlap, there are also some important differences that could impact the type of lawyer you need.
1. Marital Status Requirement
Only if you are legally married will divorce proceedings be valid. Marriage does not make any difference to Family Law. If you have never been married to your child’s other parent, and you need to establish custody or support, this is a family law instead of divorce law case, even though the issues (custody, support) appear the same as those in a divorce case.
2. Legal Action – Jurisdiction
A divorce is one process that has a definite end point – the marriage ends and a judgment is issued that deals with property, support, and custody. Family law matters, on the other hand, can be freestanding and ongoing. Years after a custody arrangement is put in place, it could be changed. A child support order may be modified if the situation changes. Family law is often more concerned with ongoing management of the relationship in the court system, while divorce law is more concerned with addressing a set of clearly defined problems concerning the end of the marriage.
3. Court Procedures
In New York, marriage dissolutions are brought in the Supreme Court while many other family law actions including custody proceedings between unmarried parents, family offense petitions, and paternity actions are litigated in Family Court. This procedural difference is important because it can impact the time limits, filing procedures and even the judge that hears your case. A seasoned attorney also well versed in Erie County Supreme Court and Buffalo’s Family Court will be able to tell you which venue will apply to your case.
The Basics of New York Divorce Law
Since divorce is usually the more pressing issue for those looking for legal advice, it’s important to have a basic understanding of divorce law in New York State.
Grounds for Divorce
Fault and no fault reasons for divorce are recognized in New York. New York has been a no-fault divorce state since 2010, which means that either spouse is able to say that the marriage is “irretrievably broken” after six months. This has made divorce much easier to obtain because no longer do couples have to show that they have been wronged, such as by adultery or cruel treatment, in order to divorce. There is still a few divorces that are filed for fault, and sometimes it’s used as a tactic, but the overwhelming majority of divorces in Erie County today are filed for no-fault.
Residency Requirements
In New York, it is generally the case that at least one spouse must have resided in the state for a continuous period of one year or two years (if the marriage was conducted or the cause of divorce originated in the state). If both partners were married in New York or lived as married couples in New York then there are exceptions that reduce this requirement. By visiting a local divorce attorney you can determine if you have met the residency requirement prior to filing.
Equitable Distribution
New York is an equitable distribution state, which means that marital property will be distributed fairly (not necessarily equally) between spouses. Factors taken into consideration by the courts include the length of the marriage, income and earning power of both spouses, contributions to the marriage (such as homemaking and child rearing), and the age and health of both spouses. This is in contrast to community property states where assets are usually divided into 50% and 50%. One of the most crucial reasons for having a knowledgeable divorce attorney is their understanding of equitable distribution, because it could have a major impact on your financial future.
Spousal Maintenance
In New York, spousal maintenance (also known as alimony) is based on a formula established by statute, which takes into account the income of both parties, but judges have discretion to deviate from the formula in certain situations.
Child Custody and Support
Even in divorce, custody and support is guided by family law principles of best interests of the child. New York courts take into account the ability of each parent to provide a supportive home, the relationship that the child has with each parent, and (in cases of older children) possibly the child’s wishes. In New York, child support is regulated by the Child Support Standards Act, which has a set formula based on the number of children and the parents’ incomes.
When You Need a Divorce Lawyer vs. a Family Law Attorney
Considering the overlap, which kind of lawyer should you look for? Let’s look at the practicalities:
You likely need a divorce lawyer if:
- You’re married and considering divorce.
- You have received the papers for divorce.You have already received divorce papers.
- You have to broker a divorce settlement with your spouse.
- Your case has involved intricate marital assets, business valuations or retirement account splits.
- You are thinking about divorce mediation and wish to have a lawyer look at any agreement you may reach.
You likely need a family law attorney (outside of divorce) if:
- You were never married and need a custody or support order
- You need to modify an existing custody or support arrangement
- You’re seeking a protective order due to domestic violence
- You want to adopt a child or become a legal guardian
- You need a prenuptial or postnuptial agreement
- You’re a grandparent seeking visitation rights
In reality, it is quite common for many Buffalo law firms to deal with the two categories collectively, so the choice between two different attorneys isn’t quite necessary. Since Buffalo divorce law firms and family law attorneys often handle various types of cases, if the firm explicitly mentions family law Buffalo NY and divorce lawyer Buffalo NY, this is a sign that they can move forward with your case regardless of what issues you have, whether that means you’re undergoing a simple divorce or a custody modification.
Final Thoughts
Family law and divorce law are not two isolated entities, rather they are two overlapping circles where divorce law is the particular part of family law that concerns divorce. No matter if you are dealing with a simple uncontested divorce, a custody dispute, or a contention dispute such as guardianship or paternity, the correct attorney will be able to determine which legal process is applicable in your case and walk you through it.
The one thing that I might leave you with is this: You don’t have to know the terminology.The one thing I want to leave you with is this: You don’t have to know the terminology before you seek help. A Buffalo Lawyer will listen to your situation, clearly explain your options, and inform you if you’re encountering a divorce or family law matter or both. The most important thing is to hire someone who is local and has firsthand knowledge of how to lead you to the best possible result for you and your family.
If your matter is specifically a divorce, start with our guide to filing for divorce in Buffalo.
Frequently Asked Questions
1. Is a divorce lawyer the same as a family law attorney?
Not exactly. A divorce attorney specializes in divorce cases and a family law attorney works on a wide variety of matters, such as guardianship, support, adoption and custody situations, without the marriage being dissolved. Numerous Buffalo lawyers are in practice in both fields.
2. How long do I need to live in New York before I can file for divorce?
Generally, the spouse seeking the divorce must have lived in New York for at least one to two years prior to filing the divorce, unless the marriage was performed in New York or both spouses were residing in New York as a married couple.
3. Do I need to prove my spouse did something wrong to get divorced in New York?
Yes, New York has no fault divorce, which is the marriage has been irretrievably broken for at least six months. While there are still fault-based grounds, they are not often needed.
4. What does “equitable distribution” mean for dividing property in a Buffalo divorce?
It does not necessarily mean that marital assets are distributed 50/50 as is the case in community property states; rather, the division is made fairly based on the length of the marriage, contributions, and circumstances.
5. Can I handle custody issues without filing for divorce?
Yes. These are separate Family Court issues from divorce and unmarried parents can establish custody, visitation, and child support without engaging in a divorce action.
6. Where are family law and divorce cases heard in Buffalo?
Custody disputes between unmarried parents or family offense petitions are filed in the Family Court in Buffalo, whereas most other family law proceedings, including divorce actions, are filed in Erie County Supreme Court.
7. How is child support calculated in New York?
Child support is governed by the Child Support Standards Act, which uses a percentage formula that takes into consideration the combined income of the parents and the number of children, and makes adjustments for certain situations.
8. What is spousal maintenance, and will I have to pay it?
In New York, spousal maintenance is the term used for alimony. It’s based on a statutory formula that takes into account the combined income of both spouses but incorporates discretion into the calculation depending on the individual circumstances of the marriage.
9. Do I need a lawyer if my divorce is uncontested?
Although it’s not required by New York law, it’s a good idea to have an attorney look at any settlement agreement before signing because an uncontested divorce still entails making decisions regarding property, child support and custody.
10. How do I choose between a divorce lawyer and a family law attorney in Buffalo?
If you are married and you are getting a divorce, your first step is to go to a divorce attorney. In the event of a custody, support or guardianship matter where divorce is not part of the equation, seek out a family law attorney. There are a lot of firms in Buffalo that provide both, and you may be able to deal with one attorney no matter what type of case it is.