Understanding New York State Divorce Laws

It is important that you have a divorce attorney who is well-versed in all types of family and matrimonial law. Our divorce & family law practice has experienced divorce attorneys who strive to meet your needs and wishes in an assertive yet compassionate manner.

Whether you are thinking about the possibility of divorce or are already in the middle of one, you will approach your matter with clarity and composure if you have reliable information about divorce law and the legal process. One of our goals at Tully Rinckey PLLC is to make you feel as comfortable as possible by answering your questions, listening to your concerns, and keeping you up to date with the status of your case.

Filing for Divorce in New York

A divorce begins when a petition for divorce is filed. This document notifies the court and your spouse, once served, that you want the court to end your marriage. Items such as child custody, child visitation, child support, spousal support, property division, and attorney’s fees and costs are often addressed in this document. The person who starts the divorce is called the plaintiff.

No-Fault Divorce

New York was the last state in the Union that required a party to claim and prove that their spouse did something wrong, and based on that wrong, what we call “grounds,” they have a right to a divorce. The most common grounds in New York up to now were adultery, cruel and inhuman treatment (physical or emotional), or abandonment (physical or sexual).

A common complaint was that this requirement left people who lacked such claims stuck in a loveless marriage or worse, with one spouse leveraging grounds against the other spouse. It was not uncommon for one spouse to argue that the other had no grounds for divorce, and thus, if they wanted out of the marriage, they would need to walk away from some marital assets or benefits that they would otherwise be entitled to in order to “pay the price” to end the marriage. While there is much debate as to whether or not grounds are of more benefit than harm, New York has taken that final step and now allows couples to get divorced simply due to what is termed “an irretrievable breakdown” of the marriage for a period of six months.

The new law specifically states that one party may claim an “irretrievable breakdown” in the marriage, which must exist for a period of six months. One party’s sworn statement that such a breakdown exists may be sufficient to warrant a divorce. The other grounds for divorce (adultery, cruel and inhuman treatment, abandonment) remain available, and a spouse could still sue for a divorce on such grounds. However, even where the Court finds that an irretrievable breakdown of the marriage does exist, a divorce still cannot be granted until the couple has resolved all issues of custody, support, asset distribution, and division of debts.

Responding to a Divorce Summons and Temporary Orders

If you are served with a summons, you must respond promptly (usually within 20 days), or you may lose your right to present your side of the case in divorce court, and the court might give your spouse everything asked for in the summons. The person on the receiving end of divorce papers is called the defendant.

Alimony, now called spousal maintenance, may be awarded based on several factors. The judge considers the length of the marriage, the relative earning capabilities and education of the parties, and whether one person was supported by the other spouse while earning either a specialized degree or license, among other things.

Discovery and Reaching a Divorce Settlement

Each spouse is entitled to financial and other information from the opposing party about the case. The procedure for obtaining that information is called discovery. Discovery may be simple or time-consuming, depending on the complexity of the issues and assets involved. Tully Rinckey’s divorce attorneys in Buffalo have ample experience handling complex divorce cases and have handled many high-net-worth divorce proceedings.

Most people agree that it is better to settle a case by agreement and have your own input than to have a trial where a judge makes decisions for you. People are more likely to obey a judgment that is based on their own agreement than one that has been imposed on them by a judge.

For these reasons, the parties and their lawyers should continue efforts to negotiate a settlement throughout the entire process, even up through trial.

Most courts require the parties and their lawyers to attend a settlement conference in which a judge or their clerk tries to bring about a settlement. It is often very persuasive to hear from the Court how a judge would likely rule if the case went to trial. The decision to settle or not to settle is yours.

What Happens in a Divorce Trial?

If your case does not settle, it will go to trial. At trial, you each tell your story to the judge. It is told through your testimony, the testimony of your witnesses, and documents called exhibits.

Though a trial can be stressful for all involved, it is the only alternative when a divorce settlement cannot be reached. Every marriage is unique, and therefore each divorce proceeding is different. Outcomes are never certain in a divorce, which is why it is important to have a divorce lawyer who is well-versed in both matrimonial law and your specific needs and goals.

Sometimes, a trial does not end the case. Either party may, within a limited period of time, appeal the judge’s decision to a higher court. An appeal adds more time and expense to the divorce process.

Tips for Going Through a Divorce

Here are some good rules to follow during the divorce process:

  • Try to maintain good relations with your spouse and children.
  • Talk to your lawyer during negotiations and before agreeing to a settlement.
  • Don’t argue with or confront your spouse or children.
  • Don’t say anything to others that you wouldn’t want the judge to hear.
  • Don’t move funds around or spend money unnecessarily without talking to your attorney.
  • Keep all financial records or other possible evidence.
  • Don’t move or try to hide evidence or assets.
  • Keep your perspective, try to stay reasonable, and communicate with your attorney regularly.

Divorce is never easy, but with the assistance of an informed matrimonial attorney, it is likely that a resolution will occur more quickly and with less hassle than if you were to proceed on your own. We are here to guide you every step of the way. If you are interested in finding out more about our services or are ready to get started with the divorce process, fill out this form now.

No matter the family or marital matter you face, the respectful, knowledgeable, and experienced attorneys at Tully Rinckey handle your legal representation with sensitivity and care. We protect your rights and fight to help you realize the legal outcomes you desire. Our divorce attorneys have assisted with countless divorce proceedings throughout Erie County, including Buffalo, Amherst, Cheektowaga, Hamburg, West Seneca, and more. Let us represent you today.

To schedule an initial consultation with a member from our experienced team, contact us 24 hours a day, 7 days a week, at 8885294543 or info@tullylegal.com

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