No-fault divorce is the law in New York State. While various proposals were tossed about for decades, New York State finally embraced a no-fault divorce bill in 2010.
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 requiring grounds 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 want 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. Thus far, with this law being new, it appears that one party’s sworn statement that such breakdown exists, may be sufficient to warrant a divorce. The other grounds for divorce previously used, remain available and a spouse could still sue for a divorce on cruelty or adultery if they wish.
However, even where the Court finds an irretrievable breakdown of the marriage to exist, a divorce still cannot be granted until the couple has resolved all of their issues of custody, support, asset distribution, and division of debts. In effect, the only thing the new law does is take away the battleground as to whether or not the marriage should be dissolved.
While there is no doubt that no-fault divorce was welcomed by many practitioners and may even open the flood gates of litigation for those clients who have been putting their divorces on hold due to lack of grounds, the practitioners will still have to navigate the mine fields of litigation and negotiation since no final judgment of divorce can be granted until all other issues are resolved by the parties, either through agreement or after trial.
The legal divorce process is intended to end the marriage and determine issues of child custody, visitation, child support, maintenance, property and debt division.
A divorce can result from an agreement between the parties or from a trial. An agreement is usually less traumatic for you and your children, and less expensive than a trial. Ultimately, most cases are resolved without a trial.
The Response and Temporary Orders
If you are served with a summons, you must respond promptly (usually 20 days) or you may lose your right to present your side of the case to the court, and the court might give your spouse everything asked for in the Summons. If you are served with papers for divorce you are 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, whether one person was supported by the other spouse while earning either a specialized degree or license, among other things.
Discovery and Reaching a Settlement
Each party is entitled to financial and other information from the other 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.
Most lawyers and judges 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 which is based on their own agreement than one which has been imposed on them by a judge.
For these reasons, – at all times, even up to trial – the parties and their lawyers should continue efforts to negotiate a settlement.
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.
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.
Trial is likely to be expensive and stressful. Sometimes though, it can be the only alternative when settlement fails. Still, the outcomes of trials are uncertain. Every case is different.
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.
What Should You Do?
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 or confront your spouse or children.
- Don’t say anything to others that you wouldn’t want your spouse or 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.
Many people think a divorce will solve all of their problems. It is important to realize that a divorce is simply the legal termination of a marriage.
Divorce involves recreating your life emotionally and financially. Our attorneys can help guide you through this difficult period by offering legal and practical advice. Working together with your attorney, you will gain a better understanding of the law, your rights, and how to reach your goals.
Before taking any legal action, make a detailed, specific list of everything you want to achieve through the divorce or separation, consistent with your financial security, your children’s best interests and your life goals.
Financial and Children Planning
It is important to get your financial papers in order. Critical papers include tax returns, pay stubs, bank and credit card statements, pension plan documents, health and life insurance policies, and copies of mortgages and deeds. It may be helpful to keep track of major purchases and assets acquired during the marriage. It is often recommended that you establish your own credit and open a separate bank account. It is important that you establish and maintain financial independence.
If you have children, this time can be especially trying. It is important to give your children emotional support and maintain the continuity in their lives. If you want to have child custody, do not move out of your family residence without the children before asking your divorce attorney. Take care of your children by spending as much time with them as possible and be truthful and honest. Remember that the divorce is your problem, not the children’s.
Mental and Emotional Planning
Remember to focus on your life goals beyond divorce. Many people will postpone a divorce because of the fear of uncertainty. Emotional endurance and balance are important to lead you through this difficult time. It is helpful to get strong emotional support and encouragement from trusted friends, family, spiritual advisors or health care professionals. There are many books and materials written about divorce that can help with the emotional part of the process. However, each state has different laws, rules, regulations and procedures when it comes to the legal aspects of divorce. Therefore, it is best to leave the legal aspects to a qualified attorney.
The terms divorce, separation, legal separation and annulment are often used interchangeably but have very different legal implications.
- In a divorce, the New York State Supreme Court declares a marriage to be dissolved.
- In a separation agreement, two parties agree to specified terms on how they will no longer be actively involved in a marital relationship but are still legally married.
- A legal separation goes a step further and has the backing of a court judgment.
- An annulment declares a marriage contract null and void. In other words, it is as if the marriage had never taken place. Annulments are difficult to obtain and generally always require the assistance of an attorney. If you want to obtain an annulment for religious reasons, it is also important to consult your religious advisor.
- In New York, you cannot simply disinherit your spouse to end the marriage.
- Divorce is never easy, but with the assistance of a knowledgeable 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 ready to get started with the legal process, please call one of the matrimonial lawyers at Tully Rinckey.
Divorce can be one of the biggest steps in the process of regaining control over your own life.
The process of divorce can also be very confusing. While people, in most instances, are free to enter into marriage, in New York only the Supreme Court can terminate a marriage. As divorce laws are different in each state, it is important to work with an attorney to protect your rights.
General Process and Divorce Terminology
While the process of divorce can vary greatly depending on numerous circumstances, every divorce is started by filing a summons in the county clerk’s office and paying a filing fee. The spouse filing the divorce is known as the plaintiff, and the non-filing spouse is known as the defendant. This document sets out what the grounds are and what relief the plaintiff wants. The plaintiff must serve the summons on the defendant spouse. Thereafter, the defendant is given time to appear in the lawsuit to contest the issues if he or she desires. Only if both parties agree on the terms is the case called “uncontested.”
If both parties do not agree, the divorce is “contested.” With a contested divorce, it is essential to involve an attorney to help you prepare for trial. Failing to file the proper paperwork or improperly drafting a pleading can result in your rights not being protected.
In between the initial pleadings and the trial there are a series of intermediate steps, each requiring additional pleadings and paperwork. The primary tools a lawyer uses are pre-trial motions and discovery. Your attorney can file motions to help obtain temporary orders for support, custody, and visitation as well as exclusive use and occupancy of the marital residence and spousal maintenance. An attorney can use formal discovery to get documents and information under oath.
A preliminary conference with the court sets up a timeline for the divorce, identifies what issues are in dispute, and sets dates for the exchange of information. Among the documents the parties may need to exchange are net worth statements, appraisals of real estate, tax returns, bank account statements, and other document requests. If children are involved, the court will also determine whether the children need independent representation, and if so, appoint a “law guardian” to represent the children’s best interests. The compliance conference is another court meeting to make sure that both sides have all the information necessary to go to trial. If a settlement has not been reached and both sides are ready for trial, the court will direct the plaintiff to file a note of issue and a certificate of readiness. Often there are pre-trial conferences held to see if any issues can be resolved before the actual trial. After trial, the Court will issue a decision.
How Long Will It Take?
The most common question involving divorce is “how long will it take?” We understand that many couples want to move on and start a new chapter of their lives. A simple uncontested divorce may be processed through the Courts within 90 days, depending on the Court’s schedule. A complex contested divorce action, involving contested custody, valuation and property issues can take from one to three years and sometimes longer. It is important to work with an attorney you are comfortable with, who understands your issues.
All original documents are located in the county clerk’s office, but divorce files are not public record. The privacy accorded matrimonial matters is a recognition of the inherently personal nature of these proceedings. Except by order of the court, the law prohibits the clerk of the court from allowing anyone, other than a party, or their attorney, to examine or copy anything in the court’s file.
In New York State, an action for divorce may be maintained only when one of the following residency requirements are met:
- The husband and wife were married in New York, and either party is a resident of New York for at least one year prior to the initial filing for divorce.
- The parties have resided in New York as husband and wife, and either of them is a resident of New York for at least one year prior to filling.
- The grounds for divorce occurred in New York, and either party has been a resident of New York for at least one year prior to filing.
- The grounds for divorce occurred in New York, and both parties are residents of New York at the time of filing.
- Either spouse has been a resident of New York for at least two years prior to filling.
Filing Your Own Divorce
Yes, you can file for divorce without a lawyer. However, too many people think that doing their own divorce means filling out some forms or purchasing a “do-it-yourself kit.” Legally, you may represent yourself, but because the law is so complex, it is very risky. Friends and family will attempt to help by giving you lots of “free” advice but it is best to leave legal matters to a professional. Friends and family are great for comfort and support but everyone’s situation is different and it is important that you are legally protected and that you don’t cause yourself harm. Only in circumstances where you and your spouse are in agreement on all terms, your assets are simple, you are satisfied that your spouse has disclosed all of his or her assets and income, and you believe that the settlement is fair, should you even consider doing your own divorce. Each state has different laws and procedures when it comes to divorce, so in New York it is generally not advised to purchase a generic book or kit.
Consulting with an attorney will help clarify and answer questions about New York’s legal requirements.
There are many situations that a “do-it-yourself” divorce should never be considered:
- You or your children are in danger or have been harmed.
- The division of marital assists and debts are unequal.
- Complicated assets including joint accounts, joint ownership, debt, pensions, plans or insurance benefits.
- One or both spouses are self-employed, own a business, not self-supporting, or there is a large income difference.
- You cannot agree on important issues.
- Your spouse is not cooperating or does not want a divorce.
- Your spouse is domineering and demanding.
- You cannot agree on parenting arrangements.
- You or your children have special needs or health issues.
- You don’t fully understand the marital finances.
- You don’t have time or don’t understand the complicated legal paperwork.
Already Filed Paperwork
If you have already filed for divorce and do not know the next step, our lawyers can help. Filing the paperwork is not an end-all to the problems or the marriage. In fact, often it is just the first step. A lawyer can help draft a clear, unambiguous and legally correct marital settlement or review one you have made yourself. The language used in legal paperwork can be technically challenging, it is best to get help. Without the proper planning and execution, a divorce can easily become a nightmare. If your spouse is contesting the divorce, it is even more important to involve a knowledgeable and experienced lawyer to guide you through the process.
How to get the most out of a lawyer while controlling costs. No one ever looks forward to the pain and expense of a divorce or the search for a lawyer to help. The cost of a divorce can vary greatly. However, there are several ways to best utilize your attorney during a divorce and keep your costs down. You can help the process by being well prepared and organized and keep a file for all notes, letters, and important documents. Some of the documents you will want to gather include:
- Full contact information for both spouses (address, phone number, social security numbers).
- Names, ages and addresses of the children of the marriage.
- Information about any prior marriage of either spouse.
- Any domestic contracts such as a prenuptial or postnuptial agreement.
- Information about any prior court proceedings involving you, a spouse or the children (including judgments, decisions, orders).
- Dates and details about about any separations, attempts at reconciliation, or marriage counseling.
Know your facts, write down any questions you would like answered, and know the agenda of topics of discussion. Schedule sufficient time for meetings or calls, free of interruptions and distractions.
Arrive on time in presentable dress and do not use any substances that impair thinking such as drugs or alcohol. Be prepared to answer questions and make decisions for yourself. Consider your needs and state the issues in a constructive way. Divorces and negotiations take time, so be patient and persistent.
All divorces take time, and often times it feels like the process is taking an eternity.
Our lawyers can help you through this difficult time so you can focus on beginning a new life. Getting a judgment doesn’t necessarily mean your divorce is over. The real divorce is when you are happy with the outcome and have taken control over your new life.
If you have children, you will have to work out a parenting plan with your former spouse. More harm is usually done to children as a result of conflict after the divorce than the time during the divorce process.
Once you have gone through a divorce, it is important to update your legal documents to reflect the changes in your life. This would include changing your will or creating a will, changing beneficiaries on health insurance policies and pension plans, changing names on deeds or titles, and changing documents such as your Power of Attorney and Health Care Proxy. Our Real Estate Practice can help you through the home closing process. Tully Rinckey is here to serve all your legal needs. Please give us a call 518-218-7100.
To schedule an initial consultation, contact us 24 hours a day, 7 days a week, at (888) 529-4543 or firstname.lastname@example.org.