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DIVORCE

 

GETTING DIVORCED IN NEW YORK STATE

 

Residency Requirements:

To plan a practical way to care for the child, with each parent pursuing the responsibilities they have had in the past.

  1. You must have been married in New York and either you or your spouse must have lived in New York for one year prior to filing for the divorce, or

  2. You and your spouse must have lived together in New York, and either you or your spouse must have lived in New York for one year prior to filing for the divorce, or

  3. Your grounds for divorce occurred in New York, and either you or your spouse lived in New York for one year prior to filing for the divorce, or

  4. Either you or your spouse have lived in New York for two years prior to the filing of the divorce

Four of the Grounds in New York are Based on the Fault of One of the Parties:

  1. Your spouse has treated you so cruelly and inhumanely that it has had a serious effect on your physical or mental health and it’s not safe or proper for the marriage to continue, or

  2. Your spouse has abandoned you for at least one year, or

  3. Your spouse has been imprisoned for at least three years, or

  4. Your spouse committed adultery, without your encouragement, within the past five years, and you did not have sexual relations with your spouse after learning of the infidelity

  1. You and your spouse have lived apart at least one year under a written separation contract or under a court judgment of separation and the spouse seeking the divorce has substantially complied with the terms of the agreement or court judgment.

  2. There is an irretrievable breakdown of the marriage for a period of at least six months, provided that one spouse has so stated under oath.

These “No Fault” grounds give New Yorkers a basis to obtain a “No Fault” divorce, in which neither spouse is judged to be at fault. An irretrievable breakdown of the marriage allows one spouse, unilaterally, to end a marriage and to do so without the agreement of the other spouse. However, under Domestic Relations Law Section 170(7), which was passed in 2010, a court cannot grant a judgment of divorce until the economic issues of the marriage are dealt with.

To prove the ground of irretrievable breakdown of the marriage, the party seeking the divorce must demonstrate that: (1) the relationship between husband and wife had broken down irretrievably; (2) for a period of at least six months; (3) provided that one spouse testifies to this under oath; and (4) proves that economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts’ fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce [D.R.L. Section 170(7)].

The legal divorce process begins when one of the spouses files an “Action for Divorce” with the Supreme Court. The other spouse is then served with the paperwork and given time to respond. If the parties are in agreement about property and debt division, as well as child custody and child support matters, the divorce can be finalized without a trial. If the parties can’t come to an agreement, the court will set a time for a hearing, usually some time in the future. After the Action for Divorce has been filed, either party can request temporary assistance from the court in the form of temporary custody and child support orders, and orders to determine who pays community debts on a temporary basis.

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Experienced Divorce Lawyer - McCulloh Law in New York

Divorce Procedure

NEW YORK: THE DIVORCE LEGAL PROCESS

The legal process of obtaining a divorce begins by filing a complaint or summons with the court. The average length of time it takes to obtain a divorce ranges from three to fifteen months from the date of the complaint. The time span can vary due to local provisions and applicable state laws, but the most defining factor is the number of disputed issues that must be resolved. Most divorces can be rather expensive. As soon as the divorce process is initiated, it is vital to ensure that the financial backing exists to support all the basic and professional services needed to enable a fair and satisfactory settlement. From start to finish, most of the issues involved in a divorce either directly or indirectly revolve around money, so knowledge with respect to the fiscal issues of the marriage is an invaluable asset.

 

Whichever spouse files the complaint or summons is hereafter referred to as the plaintiff (or petitioner). The two primary purposes for filing the complaint are to register the request for divorce with the court, and to notify the spouse via written legal documentation of the intention to divorce. As with any other legal complaint, it is typically the job of the sheriff’s office or a private process server to deliver the necessary paperwork to the interested parties. After receipt of the complaint, the defendant (or respondent) will file an answer to the complaint indicating either agreement or disagreement with the information contained therein. Typically, the filing of the complaint marks the date in which legal separation of the parties commences.

Basic information required to file a Complaint or Summons:

  • Date and location in which the marriage took place.

  • The legal residence of both parties.

  • The names and birth dates of each child of the marriage

  • The reason for declaring a divorce ( must comply with applicable New York laws).

  • A list of claims supporting the declared reason.

Soon after the complaint is filed, the Plaintiff’s attorney will file Pre-Trial Orders. These orders are formal motions which attempt to resolve any disputes which may arise concerning living arrangements, finances, temporary custody, and visitation. This will hasten the entire process, allowing each party’s attorney to concentrate on information pertinent to the actual divorce proceedings. Following the filing of the Pretrial Orders, the judge will instantly clarify the immediate future for both spouses concerning temporary arrangements. It is important to bear in mind that the temporary arrangements are by no means set in stone, and do not necessarily directly influence the final outcome of the divorce settlement. In certain situations, this is also the point at which an ex parte order may be issued. This is a temporary order which is essential for the protection of an abused spouse or child, until a permanent judgment can be made by the court.

This is the process by which the attorney seeks to uncover vital information that the client has yet been unable to provide. There are a variety of legal tools a lawyer can employ to acquire such relevant and vital information. The most common of these would be the deposition. A deposition is a statement, taken in writing, to be used to reinforce a position on a disputed issue in the divorce at a later date. It affords each side the opportunity to gain information from one another, as well as, any expert witnesses who may offer opinions regarding the disputed issues. An authorized reporter of the court is always present, to ensure that the questions asked and answers given may be verified at a later date. This is especially valuable, as it provides for the testimony of a witness recorded in a deposition to be presented in court as evidence even if the witness is not present in court at the time of the hearing or trial.

Once all of the relevant information desired by each side has been acquired, negotiations may begin to resolve the contested issues. It should not be forgotten that an out-of-court settlement may be reached at any point in time throughout the entire legal divorce process. A good percentage of all divorces are in fact settled out-of-court, usually due to a mixture of negotiations, mediation, and arbitration encouraged and supervised by the legal professionals and the court.

Both sides will be interviewed in front of a judge or a panel of attorneys that will act as a mediator. The issues to be addressed at the trial will be given special attention, in order for the judge or panel to best provide knowledge and insight that might hopefully encourage both parties to reach an out-of-court settlement. Oftentimes, during the pretrial hearing, both sides begin to fully realize the emotional and financial expenses of a trial. This usually allows for a more rational approach to the negotiation process to be adopted than perhaps previously possible. As further negotiations develop, more than one pretrial hearing may be held. Always bear in mind that the attorneys involved are invaluable in advising their clients, but in the end it is the individuals who must agree to accept the terms of a settlement.

The following are the common legal procedures which take place at the trial:

  • Opening Statements – A summarization delivered to the judge by each attorney stating what they intend to prove in the body of their respective cases.

  • The Plaintiff’s (Petitioner’s) Case – The side that originally filed the Complaint for Divorce delivers evidence to support claims declared.

  • The Defendant’s (Respondent’s) Case –The delivery of evidence that denies or contradicts claims presented in the Plaintiff’s case.

  • Rebuttal by Plaintiff (Petitioner) – A response to the Defendant’s case.

  • Rebuttal by Defendant (Respondent)- A response to the Plaintiff’s case.

  • Closing Arguments as presented by each side.

  • The Final Decision or Judgment is handed down by the court.

  • The Final Decision or Judgment is handed down by the court.

The Trial: Preparation

Remember, one can never be over prepared for court. Beyond reviewing the specifics with the attorney, other essential responsibilities of the client play a very vital role. Here are basic rules of thumb that will allow the client and the attorney to work as a successful team.

 

Presentation: the client should always be very comfortable, but not to sacrifice a proper and respectable appearance.

Respect: Be on time, don’t curse, address the judge properly, don’t raise voice, etc…

Relax: Even though the experience is very new, it is very helpful for the attorney if the client is relaxed. It is next to impossible not to be nervous on the witness stand, but one must remember to listen to all questions asked in full. Never think of an answer before the question is finished. The opposing counsel will pick up on this and use it to their advantage.

Pronunciation: Be as clear as possible. If one is soft spoken, than he or she might have to talk extra loud. Whatever is said in a court room should be heard by everyone. If an answer is not clear, someone will ask for it to be repeated. It is rarely to the benefit of the person on the stand to have to repeat anything. Be as direct as possible. One should speak as though he or she ordinarily does. For some reason people feel they must use formal language in the court room, when it only comes across as a falsehood.

Honesty: it is essential that all witnesses tell the truth. If one’s case is destroyed due to the truth, one should not be in court in the first place, that is when out of court settlement should take place. Dishonesty in the court room is obviously looked down upon, and will only worsen any situation.

 

Frequently Asked Questions:

In most cases it does not make any difference as far as who will get more support or assets, but it does make a difference in some cases because the one who files has a tendency to have a greater desire for the divorce. The individual who has a greater desire is often times more willing to let things slide by, so he or she will end up giving up more in order to have the process happen quicker. If a spouse leaves town in order to flee the summons there are measures that can be taken to get the divorce proceedings rolling.

The one benefit to this type of divorce is the victory does not go to the spouse with the greatest number of complaints. Each spouse is seen as contributing the same amount to the death of the marriage, so a more equitable agreement is possible. One might think that a no-fault divorce is quick and easy, but people always have a tendency to get very greedy till it’s all resolved.

Believe it or not, an adversarial divorce is not necessarily a horrible experience. Many people begin to experience greater hatred towards one another, which severs emotional ties that can be very detrimental later on. The fight of an adversarial divorce is also an outlet for pain that otherwise might be held in.

Only if the spouse has made a very good effort to locate the missing spouse and is willing if needed to testify in court under oath that a good effort has been made, then service of process may be made through a publication typically the local newspaper. This is known as Constructive Service.

How are debts obtained during a marriage divided in divorce in the State of New York?Debts are not uncommon at a time of divorce. Often times this is what may instigate the problems that lead a couple down the road to separation. Most attorneys will attempt to settle the debt disputes in the Marital Settlement Agreement, because it is during the process of divorce that the couple should typically withdraw from all joint bank accounts.

A divorce proceeding in which there are no disputes as far as the legal issues. Both parties tend to agree on all matters and are typically just ready for the whole process to be over with. Sometimes an uncontested case is caused by a missing spouse or one’s refusal to participate.

The minute the complaint or summons is filed the case becomes contested, and is contested until all disputes are resolved, such as support, custody, visitation, and division of assets. Many divorces start out with the intent of being uncontested under claims of no-fault, but greed often takes part when disputes over the legal issues take place.

If you are going to have an uncontested divorce and you both agree on everything it is still recommended that you hire an attorney to review the papers and make sure everything seems fair. You may be surprised what happens if you do not. A lot of people end up signing what they thought was discussed but actually was not. The state of New York will not allow one attorney to represent both parties due to the conflict of interest.

Most likely not, because the state of New York does not weigh in marital behavior when making asset distribution decisions, or awarding alimony.

A mediator may be used if the spouses do not wish to fight in the court room. They choose this alternative to sit down with a mediator that does not make decisions, but instead helps bring the not so clear into reality. The mediator helps the spouse’s to understand and express their objectives with the intent to be able to achieve them through negotiation.

It is less formal than a regular court hearing. A panel (normally other experienced attorneys) will hear both sides of the story. Each spouse will have the opportunity to disclose all information necessary to prove his or her claims. Each side must be represented by legal counsel, and the decision reached by the panel is final. The decision is then attached to the divorce complaint to become part of the final divorce decree.

The initial formal written complaint or summons that is filed with the court and delivered to the spouse is the first pleading, and the response is the second. The response will either admit or deny the allegations made in the complaint. Basically they are the papers filed to formally put a case before the court.

It starts with a proceeding in which one side will request some kind of relief, such as custody and support, before the final judgment on the divorce has been made. Since the divorce process can be quite lengthy at times, many disputes must be resolved on a temporary basis. Without temporary orders it is very difficult to have somewhat of a normal life during the process. If need be a testimony in court hearings is what will resolve disputes over temporary arrangements, but it is not recommended in most situations to take spiteful unnecessary actions.

A petition for contempt will need to be filed and if the delinquent spouse can not show good reason for disregarding the order, then a fine or imprisonment may take place.

It all depends on how difficult the case is. If it is uncontested and agreements are made very quickly then a divorce may only take a month to a month and a half. If the case is contested it could take over a year.

Residency Requirements and Grounds for Divorce

To file for a divorce in New York:

  1. You must have been married in New York and either you or your spouse must have lived in New York for one year prior to filing for the divorce, or

  2. You and your spouse must have lived together in New York, and either you or your spouse must have lived in New York for one year prior to filing for the divorce, or

  3. Your grounds for divorce occurred in New York, and either you or your spouse lived in New York for one year prior to filing for the divorce, or

  4. Either you or your spouse have lived in New York for two years prior to the filing of the divorce

In order to get a divorce in New York, you must prove any of the following grounds:

  1. Your spouse has treated you so cruelly and inhumanely that it has had a serious effect on your physical or mental health and it’s not safe or proper for the marriage to continue, or

  2. Your spouse has abandoned you for at least one year, or

  3. Your spouse has been imprisoned for at least three years, or

  4. Your spouse committed adultery, without your encouragement, within the past five years, and you did not have sexual relations with your spouse after learning of the infidelity, or

  5. You and your spouse have lived apart at least one year under a written separation contract or under a court judgment of separation and the spouse seeking the divorce has substantially complied with the terms of the agreement or court judgment.

The legal divorce process begins when one of the spouses files an “Action for Divorce” with the Supreme Court in a county where either spouse resides. The other spouse is then served with the paperwork and given time to respond. If the parties are in agreement about property and debt division, as well as child custody and child support matters, the divorce can be finalized without a trial. If the parties can’t come to an agreement, the court will set a time for a hearing, usually some time in the future. After the Action for Divorce has been filed, either party can request temporary assistance from the court in the form of temporary custody and child support orders, and orders to determine who pays community debts on a temporary basis.

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