This article will help you maximize the result you want to achieve from your action for divorce or custody, and will try to inform you as to what you should do and know before you see your divorce lawyer in New York State.
Also read these informative articles by Lisa:
Warning: The information contained herein is not intended to substitute for legal advice from your own retained lawyer in new york state. This article is merely informational in nature, and is based upon one attorney’s knowledge of the practice of family law, matrimonial law, domestic violence, child custody, child support and orders of protection.
Retain counsel before you do anything to affect your marital status and follow the advice of the lawyer you retain, not what is written herein.
One out of every two marriages ends in divorce. Because of financial and time constraints, however, many parties first find themselves in Family Court seeking an acknowledgment of paternity, child support and custody. However, Family Court has its limitations. For instance, you can not receive distribution of marital property or a divorce decree from Family Court. You must file for that in Supreme Court, which offers a broader realm of relief inclusive of support, custody, equitable distribution and other relief.
Thus, it is very surprising how little we know about the problems associated with the break up of a marriage. Most readers would be surprised to find that, with two honest and skilled practitioners representing the respective parties, the majority of the divorce cases can be and most often are settled without a trial or court appearance, over the telephone, through correspondences between the parties, or in settlement conferences in one or the other of the attorneys’ offices. Divorces can also be settled more rapidly if the Husband and Wife sit sown and negotiate the terms of their settlement before seeking the legal counsel of an attorney. For those of you who have failed in an effort to communicate with your spouse or narrow down the issues of your divorce I hope that this article helps you to prepare for and understand the process you are about to undergo.
Going through the divorce process in court and through trial is costly, depending largely on what is at stake. It may entail hiring York State Custody Attorneys, New York State Divorce lawyers, New York State Divorce Attorneys and NYS child support lawyers charge for their time by the hour. It may also entail NY attonryse who represent juveniles in JD proceedings, such as NYS juvenile Delinqueny cases, NYS attorney for family offense petitions or a NYS lawyer handling complicated child support or violation of child support cases.
Sometimes if you are lucky you can negotiate a deal with your NY Divorce attorney. A flat fee is often times your best bet with respect to keeping your costs down. To assess whether it is worth taking a case to trial you must analyze the cost/risk benefits to determine whether you shod take the case to trial. As such, determine if it worth the time and expense. Some of the factors to be considered are the value of the marital estate, the valuation of licenses acquired during the marriage, custody and visitation disputes, and geographical relocation. I have seen divorce cases cost $1,000.00 and then as high as $1,0000.000 and up, where the issues of custody and property distribution are at stake and high stakes are at issue.
The filing of a Summons and Verified Complaint or just a summons commences the action for divorce. There are filling fees involved as well. It is generally prepared at the client’s direction by the NY Divorce Lawyer you hire to start your action for divorce. Once your NY divorce complaint is served upon a spouse you or your attorney must file and serve a Verified Answer. Thereafter, the opposing NYS divorce lawyer may make a reply or counterclaim. You have to file affidavits of service. Thereafter, Discovery, Depositions, Notices, and Authorizations for the release of records, and pretrial conferences, settlement conferences, and other conferences must be had before a trial on the issues can be considered.
If you are going to court and the New York State Divorce attorney you choose advises you that your case appears to be contested, you may want to speak to a NYS divorce lawyer about your options. Next you may need to have your NY divorce lawyer prepare an Order to Show Cause for pendete lite relief, which is an application for an order that seeks immediate relief for child support under the NYS Child Support Standards Act, spousal support, distribution of marital assets, and NYS divorce injunctions against the encumbrances or sale or transfer of the marital, and a possible award of counsel fees or expert fees to pay your New York State Attorney and New York experts. The Court, in the discretion of the NYS Divorce Judge, may Order an award of carrying costs on the marital residence. It depends on your New York State Attorney, and you, as to how you wish to proceed. Your NY Divorce Lawyer makes this application or attorney if you are the spouse that is in need of immediate financial relief and said application must be accompanied by a net worth statement, which is sworn to by you and certified by your NYS divorce attorney.
The cases which can not be settled with a telephone call between the NY divorce lawyers handling the parties’ divorce case can often times be settled after some very initial pleadings and motions have been filed. Pleadings are a system of rules and regulations used by NY divorce lawyers to present the issues to the issues to the court. It usually entails written and sworn statements, which are presented alternately between the parties, each which responds to that party’s contentions which came before it. In practice, the courts hope to narrow done the NY divorce issues upon which a trial may be had. Through the process, it appears that there are certain issues, which both parties and their Ny divorce lawyers can agree upon,
All documents brought to the attention of the Court are generally sworn to by the submitting party. Pleadings are subject to proving your case at trial. In other words, if you allege cruel treatment in your complaint, then in order for the judge to execute a judgment of divorce on this ground you will need to either get your spouse to consent to the grounds, or you will need to prove the grounds through specific testimony and demonstrating to the Court what was sworn to in the complaint.
Proof involves your testimony and the testimonyh of others but sometimes is done through exhibits, court exhibits or certified records subpoenaed by your NY divorce attorney. Divorce litigation is hazardous and there are no guarantees that can be made by any NY divorce lawyer. That is why it is essential to seek the advise of a divorce lawyer in New York before you embark upon a divorce or separation. Remember, your credibility is always on the line. As such your verified complaint better contain the truth and should be able to be proven through pictures of an injury, through testimony of witnesses, through police records and hospital records or through other truthful means. Thus, there are a number of cases, which need to be litigated a while before getting the maximum result. Research is an important as the Courts will follow the law your attorney provides ase.
Waging your war against the other spouse. Do not look upon a divorce as a “war” unless it becomes one. Any NY divorce lawyer that takes that approach initially is insensitive to the financial and emotional needs of your family. Diffuse the situation of a “problem” divorce. Learn to become emotionally detached and treat it as you would any other business negotiation. You want to settle your case out of court in order to avoid the embarrassment and mental anguish that comes along with a public display of your personal problems, and you want to shield your children and yourself form becoming an unwitting victim of the court system.
If that is not possible, the Court will often advise the attorneys that you and your spouse can best fashion a settlement that will work for your family. That does not mean however that you must dispense with retaining an attorney to help you prepare your case to be in a better bargaining position with your spouse.
Rarely is the judge concerned about the reasons behind the demise of your marriage. Mainly, the judge presiding over your matrimonial case is charged with deciding four main issues. These issues center on Grounds, Support, Property and Custody. During the Pendency of the action, the Judge will be asked to decide these main issues, that being grounds, ustody, support and property distribution, with some consideration given to the peripheral temporary issues of who is to remain in the marital residence, who will pay the carrying costs on the marital residence until ultimate disposition, who will be the temporary custodian of the children, and visitation.
Many people think that if you file for divorce the spouse must leave the marital residence. This is not true in New York. To have your spouse ordered out of the house you need to show the court you are a victim of domestic violence or that there is a threat of physical harm. You may also request that the spouse leave the marital residence if the spouse has established an alternative residence elsewhere.
Plan your every step… At the first sign of trouble in your marriage, you may begin to feel helpless. You might not know what to do first. This article is designed to provide you with certain planning techniques and tools, which should empower you to get a better handle on what to expect from your divorce. Further, we will discuss herein what you should be doing to assist your lawyer in getting a good result in your case. Be sure to Xerox any items you have such as tax returns, bills lying around the house, deeds, mortgages, and bank statements or brokerage accounts. Make copies of all bank statements and cancelled checks and bring all of the materials with you to your NY divorce lawyer.
If you have not done any planning beforehand, your spouse will have the upper hand. If you have not been the bookkeeper or “bill manager” of your marriage, then become one. Before you see or interview with a New York divorce lawyer make a point of familiarizing yourself with the location of the financial records of your marriage, and the contents of the files. If your spouse is employed by a corporation or large firm, be knowledgeable about his or her employee benefit package. Believe it or not, you may have a vested interest in pension and other benefits, which have been earned during the marriage. If the records are not kept in the home, make a point of discovering the accountant in charge of your family’s finances. If at all possible, get a copy of all pertinent financial documents.
Some of the documents you will want to have in your possession are the IRS returns, your spouses’ pay stub, the mortgage and deed to any real property, such as the marital residence, copies of stocks, bonds and IRAS, and all bank records and cancelled checks.
Once you have decided on your lawyer the first thing your NY divorce attorney will prepare is a retainer agreement outlingin you rrights and obligations. You must also recive a Client’s Bill of Rights and Responsibilities. The NY Divorce Lawyer will also ask that you prepare what is called a “Statement of Net Worth” or “Financial Affidavit”. The Affidavit will ask you to list your expenses and assets. The difference between what you earn and what you need is your “shortfall”. If you have a shortfall in income then you may be entitled to spousal support.
If your New York State divorce lawyer has begun your case by the commencement of an action for divorce, rather than by a “friendly” letter to your spouse, requesting negotiations, this does not necessarily mean that you will be in front of a judge anytime soon. If, however, your spouse or your spouse’s attorney files an answer to the action and a request for judicial intervention and you or your spouse seek immediate financial or other relief, in all likelihood your case will be reviewed by a judge within 45 days or so. Some jurisdictions require the parties to submit an application for temporary relief in writing; others require the parties and their New York State divorce or family attorneys to appear for a conference. Either way, the Judges will concern themselves with the relevant facts about your case and particularly with the health and well being of the children of the divorce.
There are several areas wherein the Judge will be asked to act prior to entering a Judgment of Divorce. Typically, questions arise which need immediate attention from the Judge. However,you should start first if you can with negotiations between the divorce lawyers. It is always best to setle out of court if possible. However, if you are getting no satisfaction from voluntary negotiations, and if you are in an emergency state, your NY divorce attorney may need to do more. Often times judgment calls need to be made. For instance, when two parties split up, one or the other might leave the marital residence, or, an inversion of this problem, where one party wants the other party to move out of the house but that party will not leave.
If you are having an immediate problem with domestic violence, and you are being threatened or you are being physically harmed and your NY divorce lawyer or Family Law lawyer is doing nothing to assist you, do not stay in a place threatening harm to you and your lived ones. Your NY divorce attorney should help you find a shelter or at least provide you with a list of alternate living resources available to you through the State or County. You need to hire a new NY divorce lawyer if you are getting hurt and no one is doing anything to help you.
In cases of domestic violence, the Judge might be asked by your NY divorce lawyer or Family Court Attorney to issue a temporary restraining order of protection of the spouse and/or children of the marriage. However, as to distribution of property the judge on a matrimonial divorce rarely will focus on the bad acts of each spouse unless it impacts upon the well being of the subject children or a wasting away of marital assets.
In fact, New York is one of only five States in the United States, which still require that the parties plead some type of fault in order to obtain a divorce.
Only in cases of extreme duress, such as disgustiung physical attacks upon the children and/or wife, is fault properly considered in determining the three main issues of the case. However, in a custody action, fault is often considered in so much as it bears on the mental state of the parent seeking custody. Fault may come into play where one party is seeking an award of alimony or “maintenance” as a New York Statute refers it to. So be sure to tell your NY divorce lawyer all about the facts of your case so that that NY divorce lawyer may properly weigh the facts and advise accordingly to help you get the best results available under the law.
Interview several NY divorce attorneys on the telephone and in person before choosing the one who will represent you. Choose the NY attorney who you feel comfortable with; the chances are you will be spending a significant amount of time on your divorce and you will need to feel secure that the person you chose to represent you is actually acting in your best interests. Be wary of the New York State lawyer who you feel rushes you through your initial interview, interrupts your interview repeatedly by taking someone else’s phone call, or fails to return telephone calls. Typically, this sort of NY divorce attorney is too busy for you and will not have adequate time to deal professionally with the issues of your case.
It is important for you to ascertain whether or not the initial consultation is free. Most NY divorce lawyers will provide an initial interview free of charge so that they can access whether or not to undertake your particular case.
You have every right to inquire as to the financial element of the case, i.e. the attorney’s fees, the court costs, filing fees and the over-all expected expenditure on your case. Except in very complicated divorces which involve large amounts of money and property or a child custody dispute, be wary of any attorney who can not give you a ball-park figure as to how much money you need to spend and for what anticipated, but not guaranteed result.
Your NY divorce lawyer will be charging you for his or her services by the hour. Therefore, preparation on your part is mandatory. Before you meet with a NY divorce attorney, remember to jot down all of your questions. When you get to the meeting, address your attorney directly, and expect hard answers. During the beginning of this first session, you might feel like talking about your emotional problems relative to your spouse, the mistreatment etc. Try to resist! It is usually a waste of time and money at least at that juncture. Rather let your attorney lead the way as he or she is trying to gather information helpful to establishing your case. Remember that you have lived with the problems of your marriage for a long time, but the attorney has just met you. Afterwards, your lawyer will be interested in hearing about your marital problems to determine grounds, and later still on a human level.
Come to your first lawyers meeting armed with the facts of your marriage so that a lot of time is not wasted In a garden variety-divorce, your NY divorce lawyer will need to know the date and place of marriage, the date and place of separation and the names, ages, social security numbers, addresses and birth dates of the children. The lawyer will want to assess your financial circumstances too.
not alot of extraneous stuff!
Once I Make My Appointment with a NY Divorce Lawyer, What Should I Do in the Meantime?
Do not wait to gather up all of the financial documents you will need for the filing of your divorce. We marry in haste, but divorce takes a lot longer! Know exactly where your financial institutions are located, including the account numbers and dates of deposit. Gather it to take with you to see your NY Divorce attorney and keep it in a safe place. Try to copy bank records, telephone an demail records, tax returns, mortgages, deeds, life insurance policies, and employee packages. This can save you a lot of money. Do your research and the NY divorce attorney does not need to spend you money doing what you can already do for yourself! Once your spouse knows you have a New York divorce lawyer it will become harder to access the records you need on the issues of your divorce such as records or documents relative to custody, visitation or geographical relocation (school records, medical and dental records testing, report cards, diaries, gathering of information as to the children’s activities or day care providers,) financial records as to the income and assets of your spouse (bills, bank accounts, debts, mortgages, deeds, titles, bank accounts, contracts, business re3cords, computer records, and other financial assets or holdings, financial institution statements, pensions, retirement funds) health related issues (medical insurance, life insurance) Once your spouse knows you have seen a New York attorney, it becomes much more difficult to get a true financial picture. You should be aware of your debt structure as well. You may responsible for debts which have arisen during marriage even if they were made by your spouse. If you believe your spouse has been running up bills in contemplation of divorce, let your NY divorce attorney know this as the filing of the summons or some other legal action may be able to stop your responsibility for that new obligation
Be sure to take your name off of all joint credit cards, and publish a notice in the paper that you are not going to be responsible for your spouse’s debt in the future.
What To Do If You Are Afraid To Go See a NY Divorce Lawyer
Call several NY Divorce Lawyers on the telephone first, and find one you feel comfortable with.
Find a therapist if you feel out of sorts or depressed. It is never a bad idea to talk to a professional during a divorce proceeding. Ask your friends or your family doctor for a referral. Also indulge in fun hobbies and get back in touch with the person inside you may have abandoned or suppressed because of getting immersed in the spouse’s life or in the life of the “couple”. It’s healthier even in a good marriage for each person to maintain their individuality and get on with the pursuit of their own interests. Take advantage of your freedom without losing sight of the responsibilities you will have toward your NY divorce lawyer and the role you will need to play in the very interactive preparation of your NYS divorce case.
What can I expect financially from my settlement? What is realistic and what is popular myth? People misplace their confidence in “old wife’s tales”. The most popular yet most mythical of these beliefs is that the cheating husband will be stripped of all marital assets, while the good and dutiful wife gets everything, including alimony. This is a popular misconception. Many wives that come to their divorce lawyers seeking revenge are likely to be disappointed. The impact of the Woman’s Liberation Movement on the matrimonial laws throughout the United States has impacted what used to be called alimony. In determining alimony, or maintenance as it is called in the State of New York, most states disregard the fault and look at the need of both spouses to be financially responsible for each other. They look at the financial issues of support with the test of “need verses ability to pay”, length of marriage, age of parties, and ability to pay. The “need of one spouse verses the ability of the other spouse to pay” is what will typically control an award of spousal support. Thus, it is important to have a handle on not only your current financials but also take a look at what you will need to cover your living expenses after the divorce.
The Law Offices of Lisa Beth Older is thought of by many as being one of several of the best divorce and child custody law firms in its class of boutique law firms.
© 2024 Law Offices of Manhattan Divorce Lawyer Lisa Beth Older.
Website by: Web Brilliant