In New York State, most divorces are now granted on no fault ground (although fault grounds are still available). This means it doesn't matter why the divorce is taking place, and instead any litigation or settlement deals with division of assets and liabilities, custody and visitation, and spousal maintenance. 

Most divorces are resolved without trials. This is done either by a settlement coming about during litigation, or through some pre-existing written agreement. The agreement is a substitute for a trial, with the important aspects of having the parties, not a judge, decide upon the terms and for potentially a lot less money than a trial.  These agreements are known, depending upon when they are drafted as prenuptial, separation, and opting-out.

Whether one is seeking a divorce or a written agreement, 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 could be included.

Liabilities and debts - similar to asset characterization, debts are characterized as individual or mutual, the latter making both spouses liable.

Maintenance from one spouse to the other , because of a significant disparity between the spouses in earning ability or other factors, one spouse pay money regularly to the other for a fixed period of time to help that other spouse get back into the work force or re-educate oneself.

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 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.  Child support laws apply even if the parents were never married.

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. 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.


You should schedule a consultation with MARCO CAVIGLIA, Esq., to review you case in detail, address your concerns and questions, and assist you with a game plan, regardless of your being the potential plaintiff or defendant.  I have over 34 years of family and matrimonial litigation experience, handling all phases from agreements to trial verdicts.

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