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September 30, 2019
A divorce means that you are ending a legal marriage by way of an official judgment promulgated by the court so designated in your State. There is no constitutional right to get a New York divorce, but all the states allow divorces to occur in order to serve the best interest of the public citizens seeking to resolve their issues.
Sometime people need a neutral forum to address their marital grievances and to air out their gripes. But others just want to end the marriage in an amicable fashion, in the form of an Agreement or Stipulation of Settlement which decides the outstanding custody issues, divides up the property and secures support for the appropriate party, if applicable. Either way, there are formalities which the parties must go through and a separation agreement is not the same as a judgment of divorce. But some States allow for conversion divorce where after a period the separation agreement can be acted upon to get divorced.
In some states there is something called a cool off period where people must wait a period before filing for a divorce judgment.
Here are two kinds of divorce in this country. One just dissolves the marriage and leaves the ancillary issues up to another state where the real property of the marriage, or res, is located. The other kind of divorce is the most common kind where the court decides all the ancillary issues of support, property distribution and child custody before it grants a divorce.
The Court will require that the parties submit documents to support grounds or reasons for divorce, and these grounds are different in each state.
A divorce changes the legal status of the parties from married to separate and single.
Most of the States now have no fault divorce as a ground for divorce which means that the parties no longer must plead fault to get a divorce filed.
New York allows parties to sue for divorce on fault grounds but also has a no-fault ground, where the party pleads that the marriage is irretrievably broken for over six months.
The most important part of any divorce proceeding is to determine which parent would be the custodial parent and which parent will have visitation. While the Courts favor joint custody, the courts will listen to the facts and decide based upon what is in the best interests of the child.
One of the most important aspects of a divorce is how to divide the property that was acquired by the parties during the marriage. In New York, this is called equitable distribution. The court will first characterize the property as marital verses separate. Next, the Court, after a trial and evidentiary hearing, will distribute the property between the spouses in accordance with the prevailing statute, rules of equity and case law. In New York Domestic Relations Law (DRL) governs divorce cases.
Lastly a trial court in a divorce action will decide whether and how much child support and spousal support will be paid.
By Lisa Beth Older, Esq.
Manhattan Divorce Lawyer