divorce & family law faqs

A. Cohen – Legal Advice

DSC00284 min

By avi cohen

A divorce differs from an annulment in the respect that an annulment, if granted, erases the fact the couple was ever married. A divorce, however, stays on record. It is very difficult to get an annulment, though. If you are considering having your marriage annulled, you should ask a divorce lawyer if you meet the criteria.
 

A divorce is a complete dissolution of marriage; a legal separation is an action that married couples may elect in the event that they do not wish to live together, but are not sure that they wish to be divorced. Legal separation offers protection to an individual in the event that their spouse incurs debt and offers additional protection concerning custody, child support and tax liability.

If uncontested, a divorce can be finalized in as little as a few weeks. If the divorce is contested, however, it could take 4-6 months at the very least, and can last up to a year or longer.
 
An uncontested divorce is a divorce in which both parties have agreed on everything, including custody, child support, debt and asset division, etc. If both parties have not reached a mutual agreement, the divorce is considered contested.
 
Child support guidelines vary from State to State. Most States generate a calculation by using the income of each party (either Gross or Net), the amount of child daycare paid by each party, and the amount of Medical/Dental Insurance paid by each party to determine a figure. Please speak to an attorney to find out what your State Child Support Guidelines are.
 
Although a prenuptial agreement may include provisions for child custody and support, the decision is still up to the court. The court may change the provisions regarding these issues as they see fit.
 

There are multiple grounds that can be alleged in New York in a divorce action. However, in October of 2010 New York State became the last state to finally enact a No-Fault divorce ground. Therefore, it is likely that most, if not all, future divorce actions will be brought under this ground, although all of the other remaining grounds are still available. The grounds for divorce in New York are:

 

  1. Cruel & inhuman treatment
  2. the abandonment of the Plaintiff by the Defendant for a period of one or more years
  3. the confinement of the Defendant in prison for a period of three or more consecutive years after the marriage
  4. the commission of adultery voluntarily performed by the Defendant with a person other than the Plaintiff after the marriage
  5. living apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment;
  6. living separate and apart pursuant to a written agreement of separation signed by the parties for a period of one or more years after the signing of the agreement
  7. the relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath.

Paragraph 7 above is the No-Fault ground for divorce in New York and what this essentially means is a divorce will be granted on that ground only after the parties or the court has resolved ALL issues in the marriage. This is different from all of the other grounds for divorce in New York which requires that the party prove the ground for divorce before a final determination will be made on all of the other economic and custody issues of the marriage.

Costs and fees for a divorce can vary greatly. The cost of a divorce usually varies from lawyer to lawyer. Simple divorces that do not take a large amount of time or involves the separation of assets may not be as expensive compared to drawn out divorces involving legal hassles.

 

It is extremely difficult to determine how much a divorce will cost. I have seen divorces range from a few thousand dollars to over a hundred thousand dollars. Because each case has its own unique qualities (and sometimes people), it is hard to state how much it will cost.

I think the real question in most cases is “Can I afford to not get a divorce?” With New York now becoming the last state in the country to enact No-Fault divorce, divorces are pretty routine and will likely be granted in most cases, if not all.

Therefore, the ultimate question is what will be the end result? Given this landscape, it is important to have an attorney that is experienced and practices in the area of family and matrimonial law to assist you in protecting your rights throughout the divorce process.

It is much more difficult (and significantly more costly) to try and undue an agreement reached that may never have happened if you had an attorney from the start. You could very well have to end up living with an unjust result.

Even simple divorces require many documents, and may require at least one appearance before the judge. The lawyer is responsible to help you through that process. It is the lawyer’s role to give you up-to-date information on laws involving children, support, and property division. The lawyer acts as your advocate and assists you in negotiating an agreement that is in your best interest and will minimize future problems. If a divorce agreement cannot be reached with your spouse, the lawyer will represent you at court appearances.
 

While you have no obligation to hire an attorney in any case, do you really want to go forward in a divorce without an experienced attorney? Unless you are a brain surgeon, you would not perform brain surgery on a loved one, would you? No. Instead, you would leave it up to the trained professional who has been through the process before.

Although you may not like the idea of having to hire and pay for an attorney, doing so may be the best decision you make. An experienced attorney will make sure to protect your rights and make sure that you are not taken advantage of by your spouse and/or her/his attorney.

When New York enacted the No-Fault divorce law in October 2010, it also enacted a guideline to be used in determining a presumptive award for temporary maintenance. Note: These guidelines only apply to temporary awards of maintenance and are not to be used in determining a permanent award of maintenance.

 

The presumptive award of maintenance is to be paid by the spouse with the higher income. The court has discretion to adjust the presumptive award if the court determines the award to be unjust or inappropriate.

Upon the issuance of a divorce, either party can resume the use of his/her pre-marriage name.
 

New York allows for the annulment of a marriage when:

  • the former spouse of one of the spouses is still alive and the prior marriage is still in force (i.e. no judgment of divorce or annulment granted);
  • one or both parties to the marriage had not attained the age of legal consent;
  • one of the parties was a mentally retarded person, or a mentally ill person (generally the action can only be maintained during the continuance of the mental illness);
  • one of the parties was physically incapable of entering into the marriage;
  • consent to the marriage was obtained by force, duress or fraud; or
  • one of the parties has been incurably mentally ill for five or more years.

You should speak with an attorney on this issue as the specifics of who can maintain an action for annulment on these grounds and the time periods applicable to each ground are too involved to set forth here.

This depends on the ground upon which you are basing your divorce action upon. For example, if you are basing your divorce action on abandonment, you must show that your spouse has abandoned you for one or more years. If you rely upon the imprisonment ground, you must show that your spouse has been imprisoned for the last 3 years or more.

With respect to the grounds of living separate and apart pursuant to a decree or judgment of separation, or pursuant to a written separation agreement of the parties, you must wait at least one year from the date of the decree or judgment, or the date the written separation agreement was signed by the husband and wife before filing a divorce action.

Finally, with respect to the No-Fault law in New York, one party needs to swear under oath that the marriage has been irretrievably broken for at last six (6) months.

Other than this, you can file a divorce action at any time, subject to some time limitations that apply to certain grounds for divorce.

There is no way to provide an answer to this question until you are actually involved in the case and have a better idea of the issues that exist and remain to be resolved. Because divorce deals with human emotions and matters of the family which often are of greatest significance in a person’s life, cases can sometimes take a long time to resolve. I have also seen cases resolve in a few months. It is really case specific.
 
It depends. Because divorce is case specific, it is possible that the parties could reach a global resolution of all matters in the divorce, sign all of the necessary paperwork and get a signed Judgment of divorce without either party ever stepping into the courthouse. Whether this can happen in your case depends on how amicably you and your spouse can work with each other and whether you both have similar thoughts on how things are going to be resolved.
 
A spouse can remarry only after the Judgment of Divorce has been signed and filed with the Certificate of Dissolution of Marriage. Generally, a spouse can safely start dating again after a Separation Agreement has been signed by both the husband and wife, or after the Judgment of Divorce has been signed and filed with the Certificate of Dissolution of Marriage.
 

If the ground for divorce is anything but No-Fault, then the spouse that does not want the divorce needs to make every effort to prevent the other spouse from proving that their grounds for divorce have merit. If successful in preventing that, the court will not grant the divorce. However, because New York has recently become a No-Fault state, it appears that the granting of a divorce is inevitable.

However, with No-Fault divorces in New York, all issues of the marriage need to be resolved prior to the No-Fault divorce being granted. Therefore, all issues on custody, support, spousal maintenance and equitable distribution of marital assets need to be resolved first.

As such, it is possible to delay the divorce by fighting over these issues, but keep in mind that if the parties cannot reach a resolution on theses issues, the court will eventually schedule a trial on these issues and make its own determination and then move on to granting the No-Fault divorce.

Yes. The question only becomes when they must be decided. For every ground for divorce in New York, except the No-Fault ground, these matters will be decided after the court makes a decision on whether the ground for divorce has been proven. If not proven, then these matters are never considered and decided upon by the court and the parties simply remain married.

However, with the No-Fault divorce, these matters must be agreed upon by the parties or resolved by the court before the court can render a No-Fault divorce.

New York has multiple residency categories that a party can rely upon to bring an action for divorce, separation, annulment or nullity of a void marriage thereby allowing the New York courts to have jurisdiction to decide the matter. These requirements are as follows:

  • Parties were married in New York and either party is a resident of New York when the action was commenced and has been a resident for a continuous one (1) year period immediately prior to the commencement of the action. OR
  • Parties have lived in New York as husband and wife and either party is a resident of New York when the action was commenced and has been a resident for a continuous one (1) year period immediately prior to the commencement of the action. OR
  • The cause of action happened in New York and either party has been a resident of New York for a continuous one (1) year period immediately prior to the commencement of the action. OR
  • The cause of action happened in New York and both parties are residents of New York at the time of the commencement of the action. OR
  • Either party has been a resident of New York for a continuous period of at least two (2) years immediately prior to the commencement of the action.
No. By commencing the action, you agree to allow New York to have jurisdiction over you for purposes of the matters involved in that action. The residency requirements to commence an action for divorce in New York are simply meant to make sure that New York has enough of a basis to maintain jurisdiction over the action and the parties.
 

There are certain protections afforded members of the military who are stationed out of the state or country for military service. Requests for a stay on the proceedings can be requested, which prevents anything from occurring in the action during the period that court determines the stay shall be in effect.

Additionally, there are also protections of the service man or woman’s rights and defenses if a stay is not granted and orders or judgments are entered. This is a very detail oriented area and therefore a more in depth discussion would need to be had with an attorney familiar with the laws that apply.

All you need to file for a divorce in New York is a Summons with Notice. This merely places your spouse on notice that you are commencing a divorce action and it briefly sets forth the ground(s) upon which your action for divorce is based as well as the relief you are seeking.

A complaint is also required, which sets forth more details concerning the marriage and the ground(s) for divorce alleged by you. The Complaint is typically filed with the Summons, but is not required. If not served with the Summons, it will need to be served at a later date.

Generally, when a request is being made to change the name of a minor child, notice is required to be given to the parents.
Under New York Law, notice of the time and place when and where the petition will be presented must be served, in like manner as a notice of motion upon an attorney in an action, upon (a) both parents of the infant, if they be living, unless the petition be made by one of the parents, in which case notice must be served upon the other, if he or she be living, and (b) the general guardian or guardian of the person, if there be one.

But if any of the persons, required to be given notice by this section, reside without the state, then the notice required by this section must be sent by registered mail to the last known address of the person to be served.

If it appears to the satisfaction of the court that a person required to be given notice by this section cannot be located with due diligence within the state, and that such person has no known address without the state, then the court may dispense with notice or require notice to be given to such persons and in such manner as the court thinks proper.

A divorce complaint is filed in the Supreme Court of the State of New York, and in the county where either spouse resides.
 
The divorce complaint must be personally served upon your spouse by a person, other than yourself, who is at least 18 years of age. How long you will need to wait for a divorce again depends on the complexity of your situation, the number of issues that need to be resolved in the divorce, how amicably you and your spouse can be with each other, etc. There are too many factors that come into play to give a more specific and precise answer than this.
 
A divorce is granted by the Judge signing a Judgment of Divorce and that document being filed with a document titled Certificate of Dissolution of Marriage. Depending on what happens in your case, you may not have to go to court.
 
This is not an easy question to answer because there are too many variables. You could possibly get your divorce and it not be unfavorable to you. However, if your spouse hires an attorney, you will need to deal with someone who has the education and experience to know the law and this could result in an outcome that may not be as favorable to you if you had hired an attorney.
 
This is too involved of a question to answer briefly here. This is something that you would need to speak with an attorney about, and it will be based upon the fault ground that you would like to rely upon. However, with respect to the No-Fault law in New York, there is no need to prove fault. Rather, one party merely needs to swear under oath that there has been an irretrievable breakdown of the marriage for at least six (6) months.
 

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