New York Divorce Information
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Q: What is meant by the term divorce?
A: A divorce, sometimes called a “decree of dissolution of marriage,” is a court order terminating a marriage. After a divorce, the marriage no longer exists. Unlike an annulment, which states that the marriage was never valid or never existed, a divorce is the termination of a valid marriage. The outcome of the divorce should seek to resolve all issues between the parties, such as the division of property, child custody and visitation, and spousal and child support.
Q: What is an annulment?
A: An annulment is a court order declaring that a marriage is not valid and was never valid. The most common ground for annulment is fraud-- when one spouse never disclosed to the other spouse important information such as a previous marriage, a criminal record, an infectious disease, the inability to have children, or the desire not to have children. In addition, an annulment might be granted because one party is already married, the parties are too closely related (i.e. incest has been committed), or one party is underage and did not obtain appropriate parental consent. An experienced attorney can help you determine if an annulment is appropriate in your case.
Q:What is mediation?
A: Mediation is an informal process where you and your soon-to-be ex-spouse meet with a neutral third party, called a “mediator,” and you try to negotiate an agreement in regards to your divorce. The goal is to reach an agreement on things like property distribution, child support and custody, and alimony without going to court. Some mediators prefer to meet with both of you at the same time, while others prefer to meet with each of you separately and act as a "go between." You and your soon-to-be ex-spouse should discuss your preferences as to how you want the mediation to be run and make sure that the mediator you select will accommodate your preferences. Mediation is often faster because you determine the schedule and issues, and cheaper because you can control the cost, which is usually about 1/10 to 1/3 the cost of a typical divorce case. Mediation is most successful in cases where there are not many contested issues and the parties on relatively good terms, and if mediation is not successful, you can still take your case to court.
Q: Can mediation work if we can't even get along to talk to each other?
A: If you are willing to try to learn to talk to each other, then it's worthwhile to try mediation. Mediators have been professionally trained to help people to build agreements and to learn to communicate with each other. If you're willing to try, mediators can get you talking.
Q: I want to divorce my spouse—what is the first step I should take?
A: There are many complex legal issues when it comes to divorce—from the division of property and debts, to child custody and visitation rights. You should seek a qualified attorney before beginning the process of divorce.
If you have been married only a short time, have no children and little property, it may seem financially advantageous to “do it yourself.” However, timing can often be crucial in getting a divorce, and an attorney can best advise you when it will make the most sense in terms of insurance and taxes. A skilled attorney can help you avoid personal and/or property matters that may cost you money down the road, and will represent your best interests in resolving any financial complications that may arise. An attorney also can help avoid the possibility of one party claiming that he or she was taken advantage of because all facts were not disclosed. An attorney can also help you determine if mediation or a collaborative approach is appropriate in your case.
Q: Can my spouse and I share one divorce attorney?
When a couple thinks they agree on all issues
involved in a divorce, it may seem logical to save money and use one attorney to
just “handle the paperwork.” This is almost always a
bad idea because as
opposing parties, your interests will never be aligned. Lawyers recognize the
possibility of conflict of interest, in which it is impossible to represent both
sides fairly. Most lawyers would advise against using a shared attorney.
However, some states allow a lawyer to represent clients with opposing interests
if the lawyer has informed both clients of the conflict in writing and the
clients have agreed in writing to the dual representation. When an attorney does
represent both sides, it may open the door to malpractice claims if you were
harmed by the lawyer's dual representation.
Q: Are there any requirements for me to be able to file for divorce in New York State?
A: In order to file your Complaint for Divorce in New York, you must make sure you meet the residency requirements. Meeting the New York residency requirements is typically only a concern for a spouse who has recently moved or is planning to move in the near future. The filing requirements are:
Q: Do I need to give a reason to get divorced?
A: In New York, you must state the “grounds” upon which you want a divorce. The court may dissolve the marriage on any of the following grounds:
Q: What if I want a divorce and my spouse does not?
A: Divorce can be entered unilaterally, meaning that as long as one party seeks a divorce, the marriage can be ended. That being said, the divorce process goes much more smoothly and quickly if both parties agree upon getting divorced and one party is not trying to impede the process, which can be accomplished by various means of contesting the divorce, hiding assets, etc.
Q: What does contested / uncontested divorce mean?
A: A contested divorce is one where the couple have one or more issues, usually custody and property, that they cannot settle and are not resolved. An uncontested divorce is one without unresolved issues and when a final judgment can be entered without a trial. When there are no contested issues in the divorce, it may appropriate to try mediation or a collaborative law approach.
Q: What is a separation?
A: A separation occurs when a married couple decides they no longer want to live together, and to live apart for a while, though they are still married.
Q: Is there any requirement that I physically live apart from my spouse while I file for divorce?
A: In New York, living apart for one year or more can provide grounds for divorce. If you are not proceeding on grounds of living apart, there is no requirement that you live apart, but it is important to keep track of when you began living apart from a spouse for the purpose of accounting for community property and debts incurred after that date, as it would be considered separate property after the date of separation.
Q:What is a legal separation?
A: Another type of action, separate from a divorce, is a legal separation. A legal separation greatly resembles an action for divorce in which property is divided, except that the parties are not free to re-marry. One major advantage of filing a legal separation action is that, unlike a dissolution, there are no residency requirements.
Q: I've heard of something called a Simplified Divorce Proceeding in New York-- what is that?
A: A summary divorce may be granted in New York if: (1) the spouses lived apart for 1 year according to the terms of a separation decree or a separation agreement and (2) satisfactory proof is submitted to the court that the spouse seeking the divorce has substantially performed all the terms and conditions of the separation decree or separation agreement. There are sample divorce forms contained in the statute (Forms 1 and 12 for no-fault grounds), including the language necessary to state specific grounds and residency requirements. In addition, New York requires a financial disclosure to be filed in every divorce action.
Q: How will our property be divided in a divorce?
A: How property is divided depends upon the laws of the state where you are filing for divorce. New York is referred to as an "equitable distribution" state. When the parties are unable to reach a settlement, the Supreme Court will take the following approach to dividing the assets-- first, it will go through a discovery process to classify which property and debt is to be considered marital. Next, it will assign a monetary value on the marital property and debt. Last, it will distribute the marital assets between the two parties in an equitable fashion. Equitable does not mean equal, but rather what is deemed by the Supreme Court to be fair. The court will consider the following factors when distributing property upon divorce:
Property includes personal property, cars, real estate, shared savings and checking accounts, stocks, bonds, shares or interest in a business, and insurance policies. You might think property is something with value, but in fact even things that you might think have "no value" can be classified as property. For example: debt (loans, credit cards) goodwill, business name, professional degree or license, trade mark, copyright etc. Even if one spouse has earned all the money or a greater portion of the money to acquire the property, all the property is considered community property.
Q: What does equitable distribution mean?
A: . "Equitable" means "fair," not "equal." It may be more equitable, given the state of the marriage and the conditions of the spouses, for the majority of the property to go to the husband, instead of the wife, or vice versa. In some cases, equitable could mean an equal split of all of the community property.
Q: What about separate property?
A: Separate property is property that is not part of the
marriage as a whole, but rather belongs exclusively to either the husband or the
wife. Any property that can be "alienated" (disposed of, sold, given away, left
in a will) by one partner without requiring the permission of the other partner
is separate property. Common examples are property acquired through gift or an
inheritance, or one spouse's interest in property acquired before marriage. Any
separate debts during the marriage that were not incurred to benefit the
community, is considered separate property, as well as any debts incurred after
separation and before dissolution of marriage if the debts were for
non-necessities and an equitable share of debts incurred during this period if
the debts were for necessities. However, keep in mind that you must take care to
keep gifts and inheritances separate in order to maintain them as separate
property; if the court finds that this property has been “commingled,” it may be
considered community property to be divided equitably with the spouse.
Q: What about our debts-- how will those be divided?
A: In addition to the property acquired during the marriage,
the debts incurred during the marriage are divided upon divorce. Dividing the
debt upon divorce determines who is responsible to repay the debt.
Q: What about my pension or retirement fund?
A: Pensions and retirement funds
accrued during the time of marriage are considered part of the community/marital
property that is to be divided among the parties in a divorce. If the pension is
already being paid, the pension plan administrator can usually pay your portion
directly to you.
Q: What is alimony?
A: Today, alimony is more commonly termed “spousal support” or “spousal maintenance,” referring to payments or transfers of money or assets from one spouse to another after a divorce. Spousal support laws in New York seek to prevent a divorced spouse from suffering from a decrease in his or her standard of living. Often times after divorce, one spouse is untrained or has been out of the workforce for such a significant amount of time that it would be difficult, if not impossible, for them to quickly attain a job or professional position that would allow them to maintain the standard of living that they may have had while they were married.
Q: How is alimony or spousal support determined?
A: The court will determine temporary or permanent maintenance one case-by-case basis by considering the following factors:
Q: Do all divorces involve a spousal support settlement?
A: No, this is a common misconception. Only about ten to
fifteen percent of all divorces or separations have any sort of spousal support
as part of the final divorce judgment or decree.
Q: What is rehabilitative alimony?
A: Rehabilitative alimony is financial support that is provided for a short period of time; to allow the receiving spouse time to get adjusted, establish him or herself, financially. This type of alimony will allow the divorced spouse time to "rehabilitate" him or herself and become completely self-supporting.
Q: Are spousal support payments considered expenses for tax purposes?
A: Yes, in general, spousal support payments are counted as
deductible expenses for the spouse making the payments, and considered taxable
income for the spouse receiving the payments.
Q: What is child custody?
A: The court will award sole or joint child custody to either the mother, father or both with the best interests of the children as the standard for any decision. All custody cases must have a proposed parenting plan or agreement to be presented to the court for approval before the final order is put in place. If the parents do not come to an agreement, the court will devise a parenting plan granting joint custody, based on the presumption that joint custody is in the best interest of a minor child.
Under joint physical custody, the time is divided more evenly or equitably (not always the same thing, so ask your attorney what may happen in your particular case). The child will spend significant amounts of time with each parent, often weeks at a time.
Q: What is joint legal custody?
A: Joint legal custody, which is much more common than joint physical custody, means that both parents make decisions regarding the children’s health, education, welfare, etc. Joint physical custody means that the children spend a significant amount of time with each parent (multiple overnights in a row on a consistent basis). This does not necessarily mean that the time with the children is divided evenly between the parents.
Q: How is child custody determined?
A: In New York, courts use the “best interest of the child” standard to make a determination for custody when an agreement cannot be reached. The “best interests of the child” standard gives a good deal of power to the judge and is typically the most influential factor for the judge in making a custody decisions, so having an experienced attorney can help you maintain custody of your children.
Q: Do all parents have the right to visitation? What if I don't want my children to visit with my ex-spouse?
A: Typically the spouse who does not have physical custody of the child has the legal right to visitation. These rights can be withheld if evidence can be brought forth proving that it is in the best interest of the child not to see the spouse (examples: excessive use of alcohol, physical or verbal abusiveness). The amount and schedule of visitation is stated in the final agreement and can vary according to each family’s situation, lifestyle and circumstance, and may be quite small or quite substantial.
Q: What is child support?
A: Either parent may be ordered to pay child support. Marital misconduct is not a factor to be considered, but all relevant factors may be considered. It doesn’t matter if the parents are married, or if they are living together. The responsibility of child support is that of the parents as individuals or as a unit. Indeed, it doesn’t matter if the parents have not had any contact after the conception of the child. All parents are legally responsible for child support. The term "child support" covers all the economic necessities of life required by a child. These necessities include, but are not limited to, food, clothing, shelter, education, medical care, and other day-to-day expenses.
Q: How is child support determined?
A: Each state, including New York, has its own child support guidelines which set out the method of calculating child support. Health insurance coverage may be ordered to be provided. Marital misconduct of either parent is not to be considered. There are specific Child Support Guidelines in the statute and which are presumed to be correct, unless there is a showing that the amount of support would be unjust or inappropriate. The factors to be considered are: (1) the financial resources of the child and the parents; (2) the standard of living the child would have enjoyed if the marriage had not been dissolved; (3) the physical and emotional health of the child and any special needs or aptitudes of the child; (4) the financial resources, needs, and obligations of both the noncustodial and the custodial parent; (5) the tax consequences to each parent; (6) the non-monetary contributions that the parents will make towards the care and well-being of the child; (7) the educational needs of either parent; (8) whether 1 parent’s income is substantially less than the other parent’s; (8) the needs of other children of the non-custodial parent; (9) if the child does not receive public aid, any extraordinary expenses required for the non-custodial parent to exercise visitation rights; and (10) any other relevant factors. Security may be required for the payments.
Q: What if my child's financial needs change—is it possible to modify the child support agreement?
A: A child support award is an order of the court, and as such it exists outside another agreement. If you find that your circumstances have changed, and the existing child support award does not apply to these new circumstances, you can petition the court for a "modification" of the award. Be prepared to explain to the judge’s complete satisfaction your reasons for requesting a modification. Typical reasons include: the child is now living with the other parent, the non-custodial parent has more/less overnight visitation with the child, either parent has a substantial increase or decrease in annual income, child needs special care or healthcare, substantial increases or decreases in the child's expenses, or a change in the the child support guidelines of your state.
Q: Can I deduct my child support payments as an expense for tax purposes?
A: Child support payments are not deductible by the parent paying the child support. Similarly, child support payments are not considered income by the parent receiving the child support. The paying parent in child support may conclude that paying a lower child support and a higher spousal support will benefit them when tax time comes around. Tax consequences are often given heavy consideration in all negotiations regarding a divorce settlement.
Q: What will happen to our health insurance for my dependent children and I after I divorce my spouse?
A: Your spouse may keep the children on his or her policy. However, as you are no longer married you are no longer eligible for coverage on his policy. However most plans offer a conversion package to individual coverage under COBRA, a federal law. The cost of insurance is usually the responsibility of the separate parties after a divorce. However, coverage for the children may be available.
Q: Once the divorce is finalized, is there any way to change it?
A: Unless there is a provision in the separation agreement to
do so, they cannot. However, there is a provision in the law to amend spousal or
child support based upon a change of circumstances.
Q: How much will it cost me to hire a NY divorce lawyer?
A: It is difficult to determine how much a divorce will cost. However, after reviewing the likely issues, a lawyer may be able to give you a range of expected expenses. Controlling the expenses in a divorce, however, is no easy task. Many of the factors contributing to legal costs are outside of your lawyer’s control. The ability of the parties to cooperate and communicate may also have a significant impact. Your attorney is required to provide you with a written retainer agreement identifying the costs and hourly fees that will apply to your case. It is important that you read this document carefully and ask questions regarding any unclear issues. Once you have signed the retainer agreement, it is a legally binding and enforceable contract.
An attorney may also agree to charge a flat fee for handling your divorce. Fees charged by lawyers can vary from state to state and county to county. You may find a lawyer who charges a fixed flat fee for motions after a divorce or for uncontested proceedings where the parties have reached an agreement. In such instances, the amount of work which must be performed by the lawyer can be easily determined. This is a favorable payment method since you will know at the outset the total cost of the proceeding which will allow you to budget accordingly.
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