The decision to end a marriage is extremely difficult. A myriad of issues are raised which lead to questions to
which there are no easy answers. A person contemplating filing for divorce or who has been served with divorce papers
by their spouse, must sit down with an experienced professional to get straight answers to very complex questions so that
fully informed decisions can be made. This page of the site will provide you with some brief information about getting
divorced in New York and may answer some of your initial questions. You are encouraged to contact the office to set
up a consultation so that we may discuss your particular case in more detail. For more detailed information on particular
issues such as
child custody and visitation,
child support,
equitable distribution (division of marital assets) and
marital agreements, simply click on those pages.
I GROUNDS
New York is one of the last states which still requires the party
filing for divorce to prove the grounds for the divorce. You cannot file for divorce because you and your spouse have
"irreconcilable differences" or based on "no fault". This also means that if your spouse files for
divorce and you do not want to get divorced, you are entitled to a trial at which your spouse must prove the grounds raised
in his or her divorce papers. If the grounds are not proven, the divorce will be denied.
The grounds
for divorce in New York are as follows:
a. Cruel and inhuman treatment;
b.
Abandonment (physical, constructive or by lock out) for more than one year;
c. Imprinsonment
for three or more consecutive years;
d. Adultery;
e. Living apart
for one year pursuant to a Separation Agreement which has been on file with the County Clerk or pursuant to a Separation
Decree granted by a Judge.
Generally, fault does not impact how marital assets will be divided or on other financial
issues.
Annulment is not a ground for divorce. In fact the granting of an annulment means that the Court has
issued an Order indicating that there never was a marriage to begin with. It is the formal declaration of a broken marriage
contract. Annulment is more difficult to obtain than divorce and should only be sought where applicable and with the
assistance of an attorney. If you are interested in obtaining an annulment for religious reasons, you must speak with
your priest or rabbi too.
For further information about Separation Agreements, please see Marital Agreements.
II Contested v. Uncontested
Many people call every day asking
about an uncontested divorce. What this means is that both parties have agreed to get divorced and agreed upon
how to handle all of the issues including grounds, child custody, visitation, child support, division of marital
assets, etc. The parties may have negotiated terms that they find agreeable and may need to have a Stipulation
drafted by an attorney. The need for an agreement does not change the nature of the divorce in that it may
still be uncontested.
On the other hand, a contested divorce is one where the parties cannot agree on all of the issues,
the Defendant spouse hires an attorney and files a Counterclaim to the Plaintiff spouse's initial complaint, etc.
A case may start out as uncontested but end up being settled - even if the case is taken into Court.
Not every
case has to go into Court. Sometimes the settlement is agreed upon and a Stipulation is drafted and signed
by both parties enabling the case to proceed on paper. This is usually less costly and quicker to conclude
than a case which goes to Court. However, every case is different and the facts of your case may not lend themselves
to a quick written settlement. Prior to deciding how you are going to proceed, you should consult with a divorce attorney
so that you know all of your options and the pros and cons of each.
III What Not To Do
Here are list of things you should never do when going through a divorce (or any
other legal proceeding for that matter):
a. Ignoring legal papers which are served upon you;
b. Using
a neutral attorney or mediator without getting independent legal advice specific to you;
c. Listening to
your spouse about what the law is;
d. Moving, transferring or depleting assets;
e. Settling
too quickly or for too little becaue you just "want it over";
f. Insisting on going to trial
out of anger or overemotion and ignoring the reality of the case;
g. Using your children to pass messages or
telling them negative things about your spouse;
h. Agreeing to a division of assets without obtaining full
financial disclosure from your spouse;
i. Waiving your interest in certain things in an effort to
"speed up the case";
j. Not returning your attorney's calls, requests for information
and documentation;
k. Signing an agreement with the intention of modifying it later;
l.
Agreeing to custody or visitation arrangements that are not in your child's best interests.