DIVORCE & MATRIMONIAL LAW
In New York State, a divorce may be granted on "fault grounds." This means the person seeking the divorce, the plaintiff, asserts that the defendant is blameworthy in the marriage and that a divorce is requested from the Supreme Court. However, no fault divorce is now the most common and an acceptable ground for divorce. While all the other elements of a divorce dealing with such things as division of assets and liabilities and custody must still be determined, no longer will spouses have to exaggerate the shortcomings of the other spouse.
The fault grounds for a divorce, when pursued, still include cruel and inhuman treatment, abandonment, and adultery. These are the most common grounds, although there are others. A "conversion" divorce is similar to a no-fault divorce. When a married couple enters into a separation contract, after one year, either party can seek a divorce which does not require fault to be found, and the agreement may be converted into a divorce. No fault divorce will enable spouses to divorce if it is represented that after at least 6 months, the marriage is irretrievably broken. It is becoming the most common, no hassle ground to obtain divorce.
An "uncontested divorce" is one in which the defendant and plaintiff are in agreement with not only the idea of getting divorced, but also all the property and custodial terms of a divorce. That means that instead of a trial, the couple has already agreed upon all the things that a court would have to resolve through a trial. All divorces require that such other matters are resolved as well.
Whether one is seeking a contested or uncontested divorce, or even a legal separation, there are always important issues that must be resolved. These include:
Identification of separate property - this is property which belongs to an individual spouse despite the bonds of matrimony and are excluded from the settlement.
Equitable distribution of marital assets - this is any type of property which is considered mutual property by virtue of the marriage, regardless in which spouse's name the property is titled. This could include automobiles, the marital residence, bank accounts, retirement accounts, tax deferred savings plans, professional licenses, a business, and investments. Almost anything of value would be included.
Liabilities and debts - not just assets, but often debts must be allocated as between the partners in a marriage.
Maintenance from one spouse to the other - sometimes, because of a significant disparity in earning ability between the spouses, one spouse may need to pay a certain amount of money to the other for a fixed period of time to help that other spouse get back into the work field or learn a new field in order to become self-supporting. During litigation, temporary maintenance may be awarded based upon a formula. This controls during the pendency of the litigation, but does not necessarily reflect what the post-judgment amount will be, and often differs.
Child custody and child support - if there are children, one spouse or both might have custody, although the children will live with one parent. The other parent will have visitation usually following a set schedule. The non-residential parent always has rights of visitation regardless of the custodial situation. Custody contemplates the legal rights of a parent over children, and does not always mean the same as residency of the children. Child support is the obligation of a parent, whose children are living with the other parent, to contribute to the support of the children. This often means weekly payments to the other spouse for that purpose, and contributions or "add-ons" for such things as daycare, health insurance, medical expenses, and educational expenses based upon proportionate incomes. Although later events might make for a shorter period of child support, a parent’s obligation in New York State is to support a child until the child is 21 years of age.
Consequently, every divorce or separation needs to have these areas properly identified and addressed so that neither spouse nor any of the children suffers from a bad bargain or result. If you are working with your spouse to obtain an uncontested divorce, make certain you cover at least all of these subjects and are in agreement on them when you contact an attorney for an uncontested divorce.
You should schedule a consultation with an attorney if you are contemplating a divorce, feel your spouse may be seeking to divorce you in the future, or you have been sued for divorce. This is equally important if you are contemplating separation or an opting out agreement. While typically you will have to pay a consultation fee, it is money well invested to understand and determine your specific rights and understand what pitfalls may be in store for you in a matrimonial litigation. It is also an indispensable planning tool, even if you are only thinking about a divorce, but not ready to proceed with one.
Divorce should only be considered when attempts to reconcile differences and marital problems fail. These efforts should include marriage counseling. Often, a marriage can not only be saved but significantly improved when one or both spouses simultaneously see problems and their solution and make a good faith effort to resolve them.
When such efforts fail, and divorce seems inevitable, then a fair agreement regarding the issues that must be addressed is ideal. To this end, a couple may seek mediation. A mediator is a specially trained person, often an attorney, who lets the parties talk through their own agreement. The mediator is neutral and accepts the fact that both parties are there to come to a fair divorce settlement. With his or her assistance, the couple may then enter into an agreement and enter into an uncontested divorce.
Sometimes, one of the spouses does not wish to enter into mediation or finds it unacceptable for any number of reasons to do so, or mediation might simply fail if the parties are too far apart on one or more important issues. This then means that a "contested divorce" might be needed.
Collaborative divorce takes a team approach to resolving the issues involved in a divorce. There are advantages and disadvantages. A collaborative divorce typically involves an attorney for each party, a financial professional, and often a financial professional and a child specialist if applicable. While the stress of litigation is abbreviated or avoided, the expense of all these professionals is a consideration.
CHOOSING AN ATTORNEY
An attorney is the person privately retained to represent a party in a divorce action. The issues are joined in papers called a divorce complaint and answer. Sometimes there is a counterclaim for divorce, where the defendant, in turn, wants a divorce against the plaintiff, claiming that it is the plaintiff at fault. Significantly, the assets are also carefully identified and reviewed and are all subject to the outcome of the litigation. More importantly, if there children, the issues of custody, visitation, and child support are also addressed if in dispute.
In choosing an attorney, you should feel secure with that attorney’s qualifications and experience in this area of law. While all attorneys practicing law are required to be licensed, and any attorney can represent you, you may wish to retain one that has matrimonial law as one of his or her concentrations of practice.
Even when you determine that the attorneys you are considering are well qualified, attorneys are different as to approach and personality. You should feel comfortable with your attorney, and feel confident in your attorney’s opinions and advice. Ask people you know for referrals, contact your local bar association for the names of several attorneys practicing matrimonial law.
Other marriage related products are antenuptial agreements (pre-marriage contracts that take effect only in the event that the parties divorce) and opting out agreements (contracts between married couples which take effect immediately and do not necessarily contemplate any divorce). These agreements address all the issues that a divorce litigation would usually, and avoid the litigation. An attorney can discuss details about these with you.
We have brought you this information as a public service. We practice in the Mid-Hudson Valley of New York State, although not necessarily limited to that geographic area. If you wish more specifics about our firm, please access the rest of this website or contact us for more information. We hope this has been of assistance to you.