General Divorce Information

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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/or custody. If those issues can’t be resolved then it becomes necessary to speak to an attorney and file an action for divorce in the New York State Supreme Court, in the county where you or your spouse resides, and where the cause of action occurred. Prior to filing for a divorce, make sure you have discussed the jurisdictional requirements relative to residency. Only a Supreme Court Judge can grant you a judgment of divorce and make a final determination as to your rights under the equitable distribution laws of New York State’s divorce law, under the Domestic Relations Act.

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 over the telephone, through correspondences between the parties, or in settlement conferences in one or the other of the attorney’s offices. Divorces can also be settled more rapidly if the Husband and Wife sit down and negotiate the terms of their settlement before filing for divorce. 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 information helps you to prepare for and understand the process you are about to undergo.

Going through the divorce process in court can be costly, depending largely on what is at stake. It may entail hiring New York Custody Attorneys, New York Divorce Lawyers, New York Divorce Attorneys and New York Child support Lawyers, Attorney’s charge for their services by the hour. New York custody Lawyers also represent juveniles in JD proceedings, such as New York juvenile delinquency cases. New York Divorce Lawyers also handles family offense petitions. Complicated child support cases and violations of child support, requires representation of a New York Attorney.

Sometimes if you are lucky, you can negotiate a deal using your Aggressive Divorce Lawyer. A flat fee is, often times, your best bet with respect to keeping your costs down. You must analyze the cost/risk benefits to determine whether you should take the case to trial or not. Determine if it’s 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 thousand dollars, and run as high as a million dollars, depending on geographic location, custody issues and property distribution. Also the amount of hours involved and the experience of the New York City Divorce Lawyer has to be taken into consideration and whether it’s an uncontested or contested divorce.

Attorneys may need to depose many persons associated with the marriage, separation, and divorce custody or child support case. You may need to hire forensic experts to testify as to custody or equitable distribution of property. Even real estate accountants in NY divorce cases are needed to value the real property involved in your divorce. You want to avoid that sort of divorce wherever possible, as litigation that has risen to this level can be devastating and may have a serious threatening impact on you and your family and on the marital assets of the marriage. Fortunately, the vast majority of cases does not go to trial and are settled somewhere along the continuum of practice described below.

Commencing your New York State Action by your New York Divorce Attorney
New York Divorce LawyerThe filing of a Summons and Verified Complaint or just a Summons commences the action for divorce. There’s filing 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 divorce complaint is served upon a spouse you or your attorney must file and serve a Verified Answer. Thereafter, the opposing New York 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 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 New York 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 Attorney and New York experts. In the discretion of the NYS Supreme Court, a Judge may Order an award of carrying costs on the marital residence. It depends on your New York divorce Attorney, and you, as to how you wish to proceed. Your New York Divorce Lawyer makes this application 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. You will normally be told by your NYS Divorce Lawyer, that the Retainer Agreement and your attorneys billing charges need to accompany this application, especially if you seek counsel fees or expert fees from the other spouse.

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 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 NYS Divorce Lawyers can agree upon, All documents brought to the attention of the Court are generally sworn to by the parties. Pleadings are used to show the Court what you intend to prove 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 at a trial.

Proof involves your testimony and the testimony, and the testimony of others but sometimes is done through, 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 advice 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 important as the Courts will follow the law your New York Divorce Attorney provides the Court.

In the garden-variety divorce, the proceedings are often times commenced with a summons and verified complaint. As such, if you are served with a summons and/or complaint, you should immediately seek the advice of a New York Divorce Lawyer to determine what you need to do. Every State has there own time limits for filing answers to your spouse’s pleadings and discovery efforts. You must not run the risk of running a deadline as this could cause a devastating outcome in your case. If you are the plaintiff, a New York State divorce action provides for twenty (20) days notice to your spouse at which time your spouse must appear in the action or file a verified answer to your verified complaint. If you serve your spouse out of state, your spouse has thirty (30) days to appear or answer.

In marriages that involve children or large amounts of property or assets, the case could very well end up in a trial. A skilled and well-seasoned NY divorce lawyer or attorney will not go to trial without adequate preparation. Preparation entails several in depth conferences between you and your NY divorce attorney and all witnesses. It also involves an investigation into your financials and other issues of your marriage. The tools which NY divorce lawyers or attorneys use to “discover” what assets are to be divided between the parties are various documents and procedures typically referred to as the “discovery” or “disclosure” phase of your case.

How your divorce will precede, the results you obtain, and how much money it will ultimately cost you depends upon you and is very much under your control. This article is designed with the idea in mind that every person about to embark upon a divorce should know the rudimentary aspects of a divorce action. This includes ways they can expect to spend-and save-money. Thus, the article you are reading will assist you in gathering and organizing the information and materials you will need when you embark upon the war zone of divorce. Remember, the more organized your presentation on the issues of your divorce is, the more cost-effective your divorce will be. Also be sure to keep a brief chronology of your marriage highlighting the more important events that you believe relevant to your case. Keep a diary, and know your financial circumstances.

Domestic violence or battered women’s syndrome shod be noted carefully in your diary. If you are a male spouse, do not let pride keep you from writing down the cruel or inhuman things your spouse has done to you during the marriage, such as hitting, pushing, throwing things, punching you and otherwise physically harming you. This goes for the women in a divorce case as well.

Your New York Divorce lawyer will ask you to keep a Child Custody Checklist, listing witnesses, activities of children, child’s favorite toy, child’s best friend, names, addressees of birthday’s, doctors, dentists, schools, etc. You can be sure that if your divorce entails a custody dispute your New York City Custody Lawyer and opposition counsel will ask you all about the above facts. Be familiar with your child’s birthday, the name of the children’s school and schoolteacher and guidance counselor, and become active in all activities involving the caretaking of your child. All of these activities will work toward your favor in a custody trial.

Keep a diary of daily events, which strengthen your New York State Divorce case. The more information you have the better you will be able to help your attorney in preparing the best possible case. Often times these diaries are admitted into evidence so keep one, you can not be expected to remember everything by heart.

This article focuses on different categorizes of divorce, treating the different types of New York divorces in different chapters. Other articles will post soon for ongoing additions to the discussions on domestic violence, custody, equitable distribution, family businesses, and life insurance, financial planning tax considerations of a divorce settlement, Family Court issues, child support, spousal support and maintenance.

Experienced New York State Family Law Lawyers and New York City Divorce Lawyers will advise you best on your individual case. It is not advisable for instance to seek a real estate lawyer for your divorce. Instead try to find a New York Divorce Attorney who’s experienced in a number of these cases.

The within article also attempts to provide practical tips on how to prepare yourself for your first visit to the attorneys office, how to be cost effective in prosecuting your case, how to assume a proactive role in its ultimate disposition. Remember, divorce is “forever” and it is very difficult to “renegotiate your case once you have settled. Therefore, preparation is the key to getting what you want now.

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 treat 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 from becoming an unwitting victim or winner 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.

Common Misconceptions
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, custody, 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 rights.

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 that 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, Plan! PLAN!
Strategizing your next move is extremely important in all aspects of life, but never more important than in your divorce proceeding. 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.

What can I Expect When I am Expecting a Divorce
Once you have decided on your lawyer, the first thing your NY divorce attorney will prepare is a retainer agreement outlining your rights and obligations. You will also receive 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 Manhattan 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.

Temporary Relief
There are several areas wherein the Judge will be asked to act prior to entering a Judgment of Divorce. Typically, questions arises 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 settle 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 that threatening harm to you and your loved 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 disgusting 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 aggressive Divorce lawyer all about the facts of your case so that your NY divorce lawyer may properly weigh the facts and advise accordingly to help you get the best results available under the law.

What Should I Expect Out of My First Meeting with an Attorney?
You should be interviewing with several NY divorce attorneys. You can do it on the telephone or 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 City 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. Some NY divorce lawyers will provide an initial interview free of charge; others charge a consultation fee, 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 write 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 meeting with the lawyer, 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 basics such as 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.

Once I make my Appointment with a New York 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. Copy, bank records, telephone records, e-mails, 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 your money doing what you can 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 records, 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. Sometimes parties unfairly hide documents or assets from the other. This is illegal and your New York Divorce lawyer should take steps to uncover these documents through a process called Discovery. You should be aware of your debt structure as well. You may be 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 your spouse’s latest action.

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 Do I Do For Emotional Support?
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 that 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.

Financial Settlement and Fault
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.

New York Agreements
In order to make a separation Agreements valid there are certain formalities which you must have in the document, especially at the signature line. Speak to your New York Divorce Lawyer before entering one as the acknowledgment form is tricky and contains language that only a lawyer familiar with matrimonial law will be able to explain to you. Otherwise you will have great difficulty filing it with the County Clerk where you reside. You may put any term that is legal into an agreement, just like a contract, but you want to be sure that it covers support, equitable distribution custody and visitation and other ancillary issues such as insurance, obligations as to marital debt and financial planning. The agreement must be fair and equitable on its face and not arrived at through fraud or duress. Your NY Divorce lawyer should advise you as to what you need to include in the document given the facts of your case.

Support in New York State Courts: How do I enforce my Order?
What can I do if my spouse will not pay me what was awarded to me for child support or maintenance awarded to me in Family Court or Supreme Court? You may go to Family Court or have your New York Family lawyer assist you in preparing the petition. See a lawyer first before attempting to do this on your own. Usually your New York Divorce Judgment will have a provision that allows you to go to Family Court on a violation petition and if you can not afford an attorney in Family Court one will be provided to you free of charge to collect your child support. If you have a Family Court Order then

You may request Child Support Enforcement services and you have the right to do so and should do so if your NY divorce lawyer recommends that, or if your spouse is refusing to pay on time or not at all! However the legal procedures you need to take differs, and the results differ from court to court so you should speak with a NY State divorce lawyer before filing any papers with the Court.

Can I Modify a Prior Court Order for Spousal and Child Support in New York?
You may modify your Order if you show a change in circumstances and an increased need. Ask your New York Divorce lawyer all of the above questions. The petition must be fact specific and it is recommended hat a NY divorce lawyer, or New York Family lawyer help you.

Is Child Support “A Must”?
In most cases the answer is yes. There is a presumption that any child born during the marriage is yours. However as I said earlier, all cases differ and there are always exceptions to the rule. For example, a Court may determine you may not need to pay child support if the child was born before the marriage, you have never seen the child and there has been no acknowledgment of paternity by the spouse to be charged, someone else has claimed responsibility for the paternity of the child, or you have never been allowed to see the child, and even if the child is yours the child was born during the marriage of someone other than your self. In that case the person charged with support is the person that was deemed the putative father at birth, to wit the child of that particular marriage.

If the child was born in New York State and you did not sign an Acknowledgment of Paternity, and the parties never had an Order of Filiations, then in order to be charged with child support the person to be charged with child support must be served with a paternity petition and a child support petition in family court.

Once the Court determines you are the father then you will be charged with child support under the Child Support Standards Act Guidelines. But do not let this be the end of the story. Immediately speak to your NY divorce lawyer to see how to go about filing an Article Six Petition for Custody or Visitation. Once you are deemed the putative father or biological father then you have a right to petition the court for custody or visitation. Once you have an Article Six Order in place and you still are not being allowed to see your child you STILL must pay child support. Your recourse is NOT to stop paying child support, as that could land you in jail for contempt of a Court Order. If you are not being allowed to see your child or children, and there is nothing but a child support order is in place, rather than not pay child support, you will need to file a petition for custody or visitation to make sure there is a custody order in place. If the person who has physical custody of the children still does not allow you to see the children then you will need to have your Manhattan custody lawyer file a violation petition asking the court to enforce your custody and or visitation rights.

Do I Have to Pay Maintenance If I Lose My Job?
What do I do if I am injured, lose my job, or retire? You may move for downward modification of support but do so through a NY divorce lawyer or NY Family Law Lawyer as the petition is complicated and you must allege particular facts before your case can rise to the threshold needed under the law. If there was a mistake, however, you may appeal the order within thirty days.

Grounds for Divorce
New York has six grounds for divorce. Four of the “grounds” are based on the “fault” of one of the spouses. These are cruel and inhuman treatment, abandonment for one or more years, imprisonment for three or more years, and adultery. The two other grounds enable you to obtain a “no-fault” divorce. The spouse seeking the divorce must substantially comply with the provisions of the separation judgment or separation agreement. These two other grounds are: one year of living apart under a separation judgment granted by a Court, or under a separation agreement signed by the parties.

What must I prove to get a divorce? What is proof?

New York State still requires that you plead grounds in order to get a divorce. Your NY Divorce Lawyer will be able to tell you whether you have grounds for divorce. Whatever you allege as grounds for your divorce you must allege specific facts and dates to back up your legal grounds. Speak to your New York divorce lawyer before you attempt to do this yourself as there are various set backs if you failed to allege grounds properly. If the matter is contested you do not want to try to do this yourself. Your complaint could be dismissed if it fails to allege a New York State recognized ground for divorce. Your complaint will need to set forth reasons you rely on to file for divorce; it will have to be proved in a court of law unless the parties stipulate to grounds. The evidence necessary to prove a certain ground is established by law and your NY Divorce Lawyer experience do in drafting a complaint will be able to set forth your grounds, assuming you have them.

If your spouse contests the action for divorce, he will file a counterclaim which your NY Divorce attorney must answer. Just like your Verified Complaint, the Counterclaim must set forth allegations of fact with certainty and specificity. Your NY divorce lawyer will help you prepare for trial to prove what you allege to be true in your complaint or counterclaim. Your NY divorce lawyer must answer the counterclaim in the form of a “reply” . Do not attempt to do this yourself.

After a preliminary conference, financial and other disclosure relating to child custody, equitable distribution and support, then a pretrial conference date is usually set where the NY divorce lawyers attempt to settle your case or narrow down the issues for trial.

At trial you will be given a chance to testify. Your testimony is considered as a part of your “proof” of the facts you allege in your complaint. You will also have your NY divorce lawyer submitting exhibits and calling other witnesses to prove your case and to support the requests contained in your Verified Complaint or counterclaim. These exhibits must meet certain NYS evidentiary requirements or the Court may not consider them in rendering its decision on your case. You should always have a NY divorce lawyer experience do in this area representing you whenever you are engaged in a contested divorce over issues of grounds, child support, spousal support, equitable distribution of property, declaration of separate property, and/or custody and visitation. These are trial aspects of your case and your rights may be significantly impaired or altogether mitigated it you do not have representation by an experienced NY divorce lawyer. Do not be afraid to ask your NY divorce lawyer how many trials he or she have participated in, how many cases they have handled and what kind of results they have gotten for other like situated clients.

If the Supreme Court of the State of New York finds your testimony and other proof to be credible you will have succeeded in proving your case and the court will grant you a Judgment of Divorce. However, you will still be left to prove the other aspects of your case, such as child support, spousal support, and equitable distribution of property, declaration of separate property, and/or custody and visitation. Your New York State Judgment will generally cover all of these issues except in the rare instance where the grounds for divorce are granted and equitable distribution is determined and the remaining issues are referred to Family Court, those being child support, spousal support, custody and visitation.

An action for divorce may be maintained only when if you can show New York you are a resident for purposes of a New York action. If the residency requirements are not met you may NOT file for divorce in New York State. If you and your spouse were married in New York, and either of you is a resident of New York when the divorce action is started and has been a resident of New York for a continuous period of one year immediately before the commencement of the divorce action you have residency to file a divorce action. You and your spouse must have resided in New York as husband and wife, and either of you is a resident of New York when the divorce action is started and has been a resident of New York for a continuous period of one year immediately preceding the beginning of the divorce action. You also can show that the grounds for divorce occurred in New York, and either you or your spouse has been a resident of New York for a continuous period of at least one year immediately before the beginning of the divorce action, or that the grounds for divorce occurred in New York, and both you and your spouse are residents of New York at the time of the commencement of the divorce action. Also, if either you or your spouse has been a resident of New York for a continuous period of at least two years immediately preceding the commencement of the divorce action you can establish the necessary elements for residency in new York State for Divorce in New York. Be sure to have your New York divorce lawyer draft the complaint if there is a property or support or custody issue at hand. Do not attempt to do this without first seeking the advice from a NY divorce attorney, a New York divorce attorney or an experience NY divorce mediator with a license to practice law in the State of New York.

Beginning your Action for Divorce
Speak to a New York Divorce lawyer experienced in these family matters. Do not go to a real estate lawyer from out of state who probably will know nothing about this field.

An action for divorce, separation or annulment is started by filing a Summons or Summons and Complaint in the County Clerk’s office. You will be required to pay an application for index number fee in the amount of $210.00. Thereafter, your New York divorce lawyer must prepare a Summons which will need to be served personally on your spouse and the person that serves it must file a sworn affidavit of personal service in 120 days with the County Clerk where the action was brought.

It is possible that a simple uncontested divorce can be processed by the Supreme Court of the State of New York within 60 days. Yes, possible but unlikely. A complex contested divorce action, involving contested custody, support, and valuation and property issues can take from nine months to three years; it all depends on the facts of your case and the County where you file. Fortunately the guidelines encourage the court system to expedite matrimonial cases so you will see far less cases lingering on in court as you might have seen in the past.

What is a Summons?
A Summons is a legal document which gives notice to the opposition, that you as the Plaintiff started an action against them to dissolve the marriage and settle the issues at stake. If you start the divorce action by filing and then serving a summons without a complaint, your spouse has twenty days to serve a “notice of appearance”. If you start with a summons and Verified complaint then your spouse must appear in the divorce action and has twenty days to serve his Verified Answer.

What is a Verified Complaint?
The Complaint is a legal pleading for divorce or separation and states your case and asks for relief. A New York divorce lawyer should always be consulted to be sure you properly allege grounds for divorce or separation; it also asks for child custody, visitation, child support and maintenance, equitable distribution of marital property, and health care needs. You may also include a request for health insurance, life insurance, and that payment of legal fees is incurred by the other spouse.

The Answer may also contain counterclaims. You may ask the Court to dismiss the complaint if it fails to state a cause of action. Ask your NY divorce lawyer and do not try to do this without an experienced NY divorce attorney of your choice.

How do I Find Out the Assets or Savings or Earnings of my Spouse?
Do I have a right to see my spouse’s records, bank accounts and employment benefits? Both parties have an absolute right to full and fair financial Disclosure as to the other spouse’s income and assets and living expenses. You should not embark upon a settlement until you are satisfied your spouse has revealed all of his or her assets or expenses and debt. before the case can proceed to trial or amicable settlement negotiations. You may also have your NY divorce lawyer use discovery devices such as Notices for Depositions and Notices of Discovery and Inspection and other such devices if you have an uncooperative spouse.

Spousal Support: Am I Entitled to Receive Spousal Support and Under What Conditions?
Ask your New York divorce lawyer these questions and expect straight answers:

  • What is Spousal Support?
  • Is it the same as alimony or maintenance?
  • What is rehabilitative or durational maintenance?
  • Is there such a thing as Permanent support?
  • How is Maintenance amount and duration determined?
  • What if my spouse committed adultery or committed cruel and inhuman treatment, do I get more spousal support?

Can a man be awarded maintenance? Yes but the Court looks at a variety of factors to determine any maintenance award. Maintenance, spousal support or alimony is discretionary with the Court but General Obligations Law Section 70 requires that no agreement be entered into which would leave the other spouse a “public charge” having to resort to government services such as welfare, Medicare or Medicaid. Speak to your New York Divorce Lawyer for advice on this complicated issue.

Do I still get alimony or spousal support if I marry someone else? Spousal support ceases by operation of law when you remarry. If you cohabitate or live with a domestic partner and you hold yourself out as man and wife, spousal support will cease unless you specifically provide for it in your agreement or divorce judgment.

Spousal support ceases by operation of law when your spouse dies. However, speak to your NY Divorce Lawyer to see if you can have a right as an irrevocable beneficiary under a martial life insurance policy, or see if one may be added into the separation agreement. Also be sure you have a QDRO as there are certain rights of survivorship which may be had as part of a retirement plan to which you may be entitled especially if a portion of said retirement plan accrued during the marriage. If the separation agreement or stipulation or QDRO is not negotiated and written up by an experienced New York Divorce Lawyer or NYC Custody attorney you may be waiving valuable rights.

Can I ask for life insurance in my divorce action to insure my support award? Yes. It is not obligatory upon the Court but ask your New York State Divorce Lawyer to negotiate that into any Separation Agreement or Divorce document.

Spousal Support
What is Spousal Support?

Spousal support is also called “Maintenance” and was formerly called “Alimony. The Court is likely to award no support when the remarriage is short and the parties are young and self supporting.

However, life time awards of maintenance are usually granted after a trial where the parties have been married for a long period of time and the parties are advanced in years, and there is a disparity in income, or if one of the parties is in poor health and unable to be self supporting or to become self supporting in the near future.

There is also such a thing as rehabilitative maintenance which is designed to provide a term of support to help the spouse to retrain or educate themselves so they can get a job.

There are several factors that the Court must consider in determining the amount of maintenance, whether maintenance will be warded at all, and for how long. The parties can always agree to maintenance in a separation agreement or prenuptial agreement. Be sure the agreement is prepared with the advise or counsel of an experienced New York Divorce Attorney as there are strict rules that must be adhered to in order to make it a binding enforceable agreement.

For more information on Spousal Support, See Lisa’s article: Revolutionary Law Change in New York as of June 2015The Court must consider the standard of living of both spouses that was established during the marriage, the circumstances of the each particular case whether the spouse who is getting the award lacks sufficient means to provide for his/her living expenses and needs and whether the party paying the maintenance has the ability to pay. There are specific statutory factors which must be considered in determining amount and duration are: The income and property, the duration of the marriage and the age and health of each spouse the earning capacity of each spouse, the ability to become self supporting, having foregone an education or career opportunities during the marriage, children, tax consequences to each spouse, the transfer of property in contemplation of a divorce, the contributions or services made as a housewife, parent, wage earner or homemaker, to the career or license or business or enhanced earnings, the wasteful dissipation of assets and any other relevant factor including separate property, and egregious fault which must rise to a level that would shock the consciousness of the court. Ordinarily fault is not the major concern in awarding spousal support. Do I get more money if my spouse is at fault? Marital fault is irrelevant under the Equitable Distribution Law of New York and should be considered only when it shocks the conscience of the court. It is only one of many things to consider. In some counties egregious marital fault comes into play in fixing maintenance awards, and some courts will disallow spousal support if the spouse is cohabiting with and being supported by another person.

Unless you otherwise agree in a separation agreement, your support from your spouse ends upon remarriage. Durational maintenance is more commonly awarded where the spouse seeking support is relatively young and healthy and is not required to care for young children. The function of durational maintenance is to allow the spouse to reach independence. Where a marriage is of short duration and especially if the parties have no children, there will probably be rehabilitative (durational) maintenance of some kind, the amount an duration of which is discretionary with the Court based on the above factors. Also, the pre-divorce standard of living must also be considered under the case of Hartog vs. Hartog, and is a mandatory factor established by case law in determining the amount and duration of the maintenance award. If permanent maintenance has been awarded, the recipient spouse is usually unemployable or sick and the other spouse is well off. SO be sure you consult with a New York matrimonial lawyer well versed in these topics before you embark upon your spousal support claim.

Equitable Distribution
The divorce court, Supreme Court, must distribute all property acquired during the marriage regardless of how a spouse titles it. The Court considers the following items: Income of each party at time of marriage; the property of each party at the time of marriage, the length of marriage, the age and health of the parties, post judgment occupancy issues, loss of inheritance or pension rights, and maintenance. There can be no double dipping of an equitable distribution award and a support award. The Courts also look at any license that was acquired during the marriage, and any direct or indirect contribution to the acquisition of the marital property by non titled spouse. They also look into the future financial circumstances, valuation and liquidation of an asset, wasting away of or dissipation of assets while married and any other factor the Court shall thinks is fair.

What property is subject to equitable distribution in New York?

All property acquired by either or both spouses during the marriage, but before a separation agreement is made or before commencement of a divorce.

It does not include property provided for in a written agreement. It does not include “separate property”, which is defined as property acquired before marriage; property acquired by bequest, devise, descent or gift from a party other than the spouse; compensation for personal injuries; property acquired in exchange for or the increase in value of separate property; property described as separate property pursuant to written agreement of the parties. However, the increase in value of separate property (or property acquired in exchange for separate property) is marital property subject to equitable distribution to the extent that the appreciation is due in part to the direct or indirect contributions or efforts of the other spouse. A professional practice and license is subject to Equitable Distribution in New York if it was acquired during the marriage. Businesses, professional practices, and enhanced earning capacity, celebrity status, pensions, educational degrees, etc. can all be “property” subject to equitable distribution. Your NY divorce lawyer can better explain the details of this topic, as much more is involved the larger the marital estate becomes. Equitable does not mean the property is necessarily divided equally. The Court sitting on your NY divorce case decides this, considering the equities of your particular case. Otherwise the parties through their NY divorce lawyers may elect to opt out and agree to terms between themselves so long as they are just and equitable and there has been full and fair financial disclosure. Matrimonial Agreements include, Separation Agreements and Stipulations of Settlement arrived at in court or through mediation. Matrimonial Agreements can be made before or during the marriage including Nuptials or prenuptials.

Marital Agreements
Agreements must be in writing, signed by both parties before a notary and acknowledged in a manner required for the filing of a deed. You need a NY matrimonial attorney to prepare it or else it may not be enforceable. It generally includes ALL OF YOUR TERMS OF SETTLEMENT. Be sure your NY divorce attorney includes adequate satisfactory terms and provisions for the ownership, and division of all of your property. Be sure the property is classified as separate verses marital. For example, if the property or fund was inherited, acquired before the marriage or after commencement of the action, or if it was derived from a personal injury law suit it is probably separate property not subject to equitable distribution. Your NY divorce attorney should go over this distinction with you so you understand it, as it is an important one and could also affect your maintenance claim. The agreement should also set froth terms for custody and support must be fair and reasonable and not through duress or fraud. Be sure the agreement covers provisions for education of the children as this is discretionary with the court. It must not be an unconscionable agreement or it can be set aside. Make sure your New York divorce attorney or New York divorce lawyer looks it over before you sign it!

Enforcement of Spousal and Child Support in New York
You can file in the Supreme Court or the Family Court of the State of New York for a support order. If your separation agreement or divorce judgment contains a decretal paragraph that your spouse pay child support or spousal support or alimony bring an enforcement proceeding. The Supreme Court of the State of New York or the Family Court of the State of New York will grant you a money judgment, or take away the driver license of the nonpaying spouse. Also the nonpaying spouse can be held in contempt and jailed for nonpayment if it is determined to be willful.

You can also sue your spouse for up to $3,000 in your local town justice or small claims Court if you have an agreement to sue on. You can obtain an Income Execution for Support order from your NY divorce attorney, the Clerk of the Family Court or the child support collection unit of the Family Court of the State of New York. Your NY divorce attorney may also obtain an Income Deduction Order from either court depending on where the action was filed. You are also entitled to apply for and get child support enforcement assistance from New York Social Services Law upon application, to persons not receiving aid to dependent children. You need to apply by filling out a petition with the Family Court or applying to the Family Court of the State of New York in a proceeding for the establishment of paternity and support. You’re New York Family Lawyer may ask the Court to direct that the child support payments be made through the New York Child Support Enforcement Unit, which issues an income execution for child support and maintenance and even health insurance and arrears in child support. New York Family Court must direct that the child support payments be made to the New York Child Support Enforcement Unit, which must immediately issue an income execution for child support or combined maintenance and child support, and may issue an execution for medical support enforcement in accordance with the provisions of the support order. The parties may agree otherwise but the reason for deviation must be acceptable to the Court and placed in the Order.

Modification of Spousal and Child Support Obligations in New York
Can I stop paying child support? No, not unless the children are over 21 years of age or otherwise emancipated. Although an application may be made to the court to suspend or terminate future child support, the right of the child to receive adequate support can not be taken away. However I have seen Courts suspend alimony or spousal support and the remedy is to move for enforcement of visitation in Family Court under the applicable Articles of the Family Court Act. If the Supreme Court divorce is still pending then you must move for relief there.

I was ordered to pay maintenance that I can no longer afford. What can I do?

You may move for downward modification. New York Family Court will consider your application and your ability to pay as shown from past actions.

However, if the order was made before July 19, 1980, you may not be able to modify the order or separation agreement.

If you feel you are falling in arrears in child support or maintenance for just because you MUST file for downward modification. Until you do that you will be held responsible for back payments owed under the Order sought to be modified. If you succeed then the new Order takes the place of the old order or agreement. In order to be successful your New York Divorce lawyer will explain to you that you must prove that you have a substantial change in circumstances and your New York Divorce attorney will also tell you to allege and prove extreme hardship or you will not prevail.

Other Forms of Relief
Your New York Divorce lawyer will explain to you the various forms of relief that may be secured in Family Court or in Supreme Court on family law cases. Of course, family court is limited in what they can do so be careful and consult you’re your New York Divorce lawyer before doing ANYTHING. Supreme Court fro example may require a spouse to buy insurance for health and hospital care or life insurance for the spouse or children of the marriage. Health insurance can only be had for the term in which the support order is in place. As for life insurance fixed by the Court your interest ends with the termination of the spouse’s obligation to pay maintenance, child support, or any other order such as equitable distribution.

Be sure you understand COBRA rights and speak about this to your New York Divorce lawyer as you may have rights to be covered on your spouses’ health insurance up to 36 months from the divorce under provisions of federal law.

What is the Time Line I Might Expect?
A simple uncontested divorce can be processed by the Supreme Court of the State of New York within 60 days. A complex contested divorce action, involving contested custody, support, and valuation and property issues can take from six (6) months to one to three (3) years. However, it is an expedited proceeding so the court guidelines move the cases along to completion within nine months; that is their stated goal and if at all possible the New York Divorce lawyers and New York State divorce court will try to move your case along so that it does not linger.

Support is what usually holds up a divorce. Most New York Divorce lawyers representing the “enfranchised, employed” spouse try not to offer spousal support in negotiations until farther into the case. Do not give up. Make your New York Divorce lawyer know you are prepared to fight if you perceive a problem in supporting yourself or acquiring health insurance after the divorce is concluded. Remember apart from your COBRA rights after the divorce you are usually NO LONGER COVERED under your spouse’s health insurance policy. Maintenance is not usually awarded after a trial where the spouse is young and healthy, able to support themselves and the marriage is short, especially if the spouse is not charged with caring for children. Durational maintenance is given after trial only after you have proven your claim, or else through negotiations between the New York Divorce lawyers for a set period of time. The goal is to secure financial independence for the receiving party. When the marriage is quite short duration courts shy away from what we used to call “alimony”. The word alimony is now a term of art that explains a payment made to a third party on behalf of a spouse in A New York Divorce. You are more likely get permanent maintenance if you have been married for a long time and you can not afford to support yourself. But the parties must agree to the amount and duration or else you need to go to trial and prove to the Court that you are entitled to life term spousal support or maintenance. The prevailing thought in these sort of cases is to give the spouse rehabilitative maintenance. In contrast, where the Court awards life time maintenance the recipient spouse is usually proven to be very old or else physically ill. Thus the duration of the marriage is an important element as is the age of the parties their health and the disparity in income between spouses. Speak to a New York Divorce lawyer to go over all of the various statutory and case law factors a Court will consider before making an award, if any. Do not expect maintenance award if the marriage is six months old, you are in excellent health, you are self supporting and you have no children. You can always apply but the result may not be to your liking.

You can always apply for a temporary support award in Family Court or in the context of a pendete lite application. Always consult with a New York Divorce lawyer or New York divorce attorney before you attempt to do this your self.

What if the Spouses Live in Separate States?
There are uniform laws that cover situations where your spouse may live in another State; the fact that your spouse lives elsewhere does NOT preclude a child support order. Speak to a New York Divorce lawyer who will explain to you the details of the laws which may vary from state to state. However as a New York resident you are entitle dot receive money and apply for spousal support and child support and the New York Courts will be able to enforce any agreement or Order entered into in New York regardless of where your spouse now resides. The laws are set up such that courts in varying states will most likely cooperate with one another to see to it that you receive your support money. Again, speak to and consult with a NY Divorce lawyer or New York City divorce lawyer before you go any further as this is a complicated area of law that may require you to file a Judgment in another state.

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.

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