Frequently Asked
Questions: Divorce

FAQ
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How do I file for divorce?

A divorce action is started by filing a document called a Summons with Notice with the County Clerk. The Summons with Notice states that you are seeking a divorce, the grounds for divorce, and other relief that you want the Court to grant you. You are called the Plaintiff and your spouse is the Defendant. A copy of the Summons with Notice is served on your spouse (hand delivered by a process server) after it is filed. Sometimes a more detailed document, called a Verified Complaint, is filed and served with the Summons with Notice.

What are the grounds for divorce in New York?

Divorce law is a matter of state law and each state has its own unique set of laws.  Since October, 2010, when New York added a true no-fault ground, most divorce actions are based on the irretrievable breakdown of the relationship for six months or more. However, there are other grounds for divorce which remain on the books, as follows: (1) cruel and inhuman treatment; (2) abandonment (actual abandonment is when your spouse leaves the marital home or locks you out; constructive abandonment is when your spouse refuses to engage in sexual relations); (3) your spouse has been imprisoned; (4) adultery; (5) you live separately for a year after a judgment of separation is issued; and (6) you live separately for a year after a separation agreement is signed.

How will my spouse get notice of the divorce action?

The Summons with Notice or Summons and Verified Complaint will be personally delivered to your spouse by a process server.

What happens after the Summons is served?

If both parties and their attorneys feel it will be worthwhile, a four-way conference may be held in our office to negotiate a settlement. Otherwise, a Request for Judicial Intervention is filed, a judge is assigned to your case and a court appearance (Preliminary Conference) is scheduled.

What is an uncontested divorce?

An uncontested divorce is when both people agree that they want to get divorced, and they have reached an agreement on all issues, including occupancy or sale of the marital home, distribution of assets such as cars and bank accounts, payment of debts, custody and visitation of children, child support, maintenance (alimony) and medical insurance. We will prepare a Stipulation of Settlement and other documents for both of you to sign. However, we cannot represent you and your spouse. Your spouse can retain his/her own attorney or decide to proceed without legal representation. You will not have to appear in Court.

Sometimes a divorcing couple have worked out most, but not all, of the issues of their divorce. If you believe that the remaining unresolved issue or issues can be worked out, we will send a letter to your spouse advising him/her that we have been retained to represent you and that he/she should have his/her attorney contact us. The parties will meet at a four-way conference to “hammer out” these remaining issues. It is called a four-way conference because it is attended by both the parties and their attorneys. It is usually preceded by the exchange of financial disclosure documents called “Statements of Net Worth.” If the four-way conference succeeds, one of the attorneys will draft a Stipulation of Settlement based on the outline of the agreement reached.

I think my divorce will be contested. What will happen after my initial consultation?

We can immediately start an action for divorce on your behalf and have your spouse served with the divorce papers. If you are in a situation which requires immediate court intervention, such as you have been cut off financially or your spouse is threatening to hide assets, a motion to the court may be brought simultaneously with the commencement of the action for divorce (see Pendente Lite Motions, below).

What should I do if I was served with a Summons for divorce?

You should contact an attorney immediately, as you have a limited amount of time to formally respond to the Summons either by Notice of Appearance (if you were served with a Summons with Notice) or Verified Answer (if you were served with a Summons and Verified Complaint). If you fail to respond in time, you are in default, and your spouse may be granted all of the relief that he/she has requested. By the same token, you will not be able to get the relief you are entitled to.

Will I have to go to Court?

In Suffolk County, divorce cases are handled in the Supreme Court in Central Islip. In Nassau County, the Supreme Court is located in Mineola. In New York, only the State Supreme Court has jurisdiction to handle divorce cases (Family Court does not issue divorce judgments). The first court appearance is called the Preliminary Conference, and there are several court conferences held periodically thereafter until the case is ready to go to trial. You are generally required to attend all conferences.

What will happen at the Preliminary Conference?

At the Preliminary Conference we will negotiate and assist in drafting a Preliminary Conference Stipulation and Order which sets forth a schedule of resolved and unresolved issues, directs the appointment of necessary experts to conduct appraisals, determines who will pay for them, appoints an attorney for the children (if needed), and determines when documents must be exchanged and depositions held. The Preliminary Conference Stipulation will be “so-ordered” by the judge, and is binding on both parties. It may also contain agreements resolving matters of immediate importance, such as agreements to support the household during the divorce, restraints on alienation of property, etc.

How long will it take to get divorced?

If you reach a settlement of all issues involved in your divorce and execute a Stipulation of Settlement, the divorce will be final when the judge signs your Judgment of Divorce, usually from 3 to 5 months after all of the divorce papers are submitted to the Clerk of the Court.

If you and your spouse are unable to reach a settlement, the amount of time it takes to get your case ready for trial can range, generally, from several months to a year, or longer, depending on the complexity of the issues involved, the amount of pendente lite motion practice that takes place, and whether you and your spouse comply with demands for document disclosure and pre-trial depositions.

Of course, your divorce can be settled at any time, and even a case where the parties remain opposed on fundamental issues (e.g., custody of the children) can be settled before trial where the parties remain open to compromise. Oftentimes spouses who were unable to settle their case in the beginning, are able to settle later during the litigation after preliminary issues have resolved, circumstances change, or their initial anger abates.

What if my spouse doesn’t respond to the Summons?

If your spouse doesn’t respond to the Summons in the time allowed, he/she is in default, which means he/she has waived the right to fight the divorce. An inquest may be held where you will testify about your grounds for divorce, and present evidence to support your requests for ownership and/or possession of property, custody of your children, child support, etc.

What can I do if my spouse has gotten a Judgment of Divorce against me by default?

You should contact our office immediately. You have a limited amount of time in which to ask the Court to vacate (or un-do) the divorce. There are no guarantees, but one thing is for sure – the longer you wait, the less likely it is that the Court will grant your request to vacate the default. Once the default judgment is vacated, the divorce action starts over again as if the default never happened.

What is a pendente lite motion to the Court?

A pendente lite motion is a request for the Court to enter an order granting temporary relief, that is, an order which is in effect during the time your divorce case makes its way through the legal system, until a final judgment is granted. Common requests for pendente lite relief are occupancy of the marital home, temporary child support, temporary maintenance, payment of carrying charges on a residence, continuation of medical insurance, child custody and visitation, and a restraint on selling or hiding assets. Financial pendente lite relief is usually retroactive to the date of the request. Please see Battle on the Homefront, an article by Clifford Petroske, for further information regarding pendente lite occupancy of the marital home.

What does Equitable Distribution mean?

Equitable Distribution is the manner in which the parties’ marital property is divided and debts allocated by the Court upon a divorce. Equitable Distribution is not necessarily equal distribution, and there are many complex factors involved.

What is marital property?

Generally, all assets acquired during the marriage are marital property. While marital property is distributed by the court, separate property is not. Separate property includes property owned prior to the marriage, property acquired after the commencement of an action for divorce or after the execution of a Separation Agreement, property acquired by gift or inheritance, and personal injury awards. Assets which may be subject to equitable distribution as marital property include real property, vehicles and other personal property, bank accounts, pensions and other retirement benefits, an interest in a business, and enhanced earning capacity (a license or degree earned during the marriage). For a more detailed discussion of separate vs. marital property, please refer to Separate (But Different) Property and The Marital Residence and Separate Property, articles by Clifford Petroske.

Can I get a divorce if I don’t know where my spouse lives?

If you are unsure of your spouse’s whereabouts, a search of public records will be conducted. A private investigator may be needed. Any information you can provide is useful, including last known address, date of birth, and social security number. If your spouse cannot be located after a diligent search has been conducted, or if we are for some other reason unable to personally serve him/her with the Summons, we will request that the Court direct an alternate method of service, such as publication in a newspaper. Regardless of whether your spouse is ever actually located, you can obtain a divorce, provided a diligent effort is made to locate him or her.

Do I Need to Be Separated from My Spouse before Filing for a Divorce?

Many people are anxious to divorce so that they can enter another relationship and possibly get re-married. Fortunately, in 2010 New York added a true no-fault ground for divorce that does not require you… READ MORE

Is There a Way to Speed Up the Divorce Process?

One complaint we often hear from clients is that the divorce process is taking too long. Clients want to be freed of their marriage as soon as possible and dislike the slow pace of the New York court system. Actually, there are several options for speeding up a divorce. To learn moreREAD MORE

How do I file for divorce?

A divorce action is started by filing a document called a Summons with Notice with the County Clerk. The Summons with Notice states that you are seeking a divorce, the grounds for divorce, and other relief that you want the Court to grant you. You are called the Plaintiff and your spouse is the Defendant. A copy of the Summons with Notice is served on your spouse (hand delivered by a process server) after it is filed. Sometimes a more detailed document, called a Verified Complaint, is filed and served with the Summons with Notice.

LEARN MORE ABOUT DIVORCE

What are the differences between sole custody, joint custody, and shared custody?

Perhaps more than in any other area of matrimonial and family law, there is confusion over custody terminology. Having custody of a child, and having “sole” custody of a child are the same thing. It means that the child resides with you and you are responsible for making all important decisions in that child’s life. If the child resides with you but you share the responsibility of making decisions with the other parent, then you have residential custody but share joint custody . . .

LEARN MORE ABOUT CHILD CUSTODY

How does the Court determine how much child support a parent must pay?

The New York law which governs the support of children is referred to as the Child Support Standards Act (“CSSA”). According to the CSSA, the basic child support obligation is determined as a percentage of the non-custodial parent’s income less certain deductions, most commonly FICA (Social Security and Medicare taxes). The percentages are 17% for one child, 25% for two children, 29% for three children, 31% for four children and at least 35% for five or more children.  However, the . . .

LEARN MORE ABOUT CHILD SUPPORT

What is spousal maintenance?

Maintenance is a periodic payment made to a spouse by the other spouse for his or her support. If it is made during an action for divorce, it is called temporary maintenance, and if it is made after the divorce, it is called permanent maintenance, even if it is limited in duration to a period of months or years and is not truly “permanent.”

LEARN MORE ABOUT MAINTENANCE

How long do I have to file an appeal?

For Supreme Court orders (divorce cases) you have thirty days from the date of service of a copy of the order or judgment with notice of entry. For this time period to start, the order/judgment must have been entered with the county clerk and there must be notice served of this filing. If any one of these things does not happen . . .

LEARN MORE ABOUT APPEALS

What is a QDRO?

QDRO stands for Qualified Domestic Relations Order and is pronounced “quad-dro.” A domestic relations order is a special court order that is designed to distribute a piece of a pension or retirement account to a former spouse. A qualified domestic relations order is a domestic relations order (“DRO”) that, after it is issued by the court, is qualified. . .

LEARN MORE ABOUT QDRO'S

What disadvantages are there to being legally separated, but still married?

There are numerous disadvantages to a legal separation, but the primary problem is enforcement. Divorce judgments are far more easily and effectively enforced than separation agreements standing alone. . . .

LEARN MORE ABOUT SEPARATION

What are the grounds for annulment in New York?

A common misconception is that a marriage can be annulled simply because it was of very short duration. This is not the case. As in divorce, New York law requires that you have one or more specific grounds to obtain an annulment. . .

LEARN MORE ABOUT ANNULMENT

How do I obtain an Order of Protection?

If you are a victim of a crime, the district attorney will request an order of protection for you. If the other party has not been charged with a crime, you will have to go to Family Court to file a family offense petition for yourself or your child . . .

LEARN ABOUT PROTECTIVE ORDERS

Request a free consultation

When facing a divorce, child custody, or child support case, you deserve a lawyer who will listen to your concerns and take the time to explain your options, and who has the knowledge and experience to give you the best advice.

The best way to identify whether a Long Island divorce lawyer is right for you is to meet with the lawyer for an initial consultation. At Petroske Riezenman & Meyers, we are proud to offer potential clients a free, confidential consultation where they can learn more about our experience and discuss their legal dispute. We can also offer our preliminary assessment about how the dispute will likely turn out as well as what evidence you will need for a favorable outcome.

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These consultations are entirely no-risk. If you like what you hear, we can discuss our fees and then go ahead and formalize the attorney-client relationship. If you want to meet with other Long Island family law attorneys, then that is absolutely fine as well.

Complete the Form or call now for a free consultation (631)337-1977.

Why Choose Petroske Riezenman & Meyers

There are countless Long Island attorneys who will promise to aggressively represent your interests in a divorce or family law dispute. But only one firm has the right mix of attributes to provide cutting-edge legal representation along with compassionate support in this stressful time.

At Petroske Riezenman & Meyers, our success is built on three pillars:

Knowledge

Matrimonial and family law changes often. New developments come out of Albany every year, and the courts implement the law in sometimes surprising ways. To effectively protect your interests, you need a lawyer who understands the latest developments in the law, however minor. We stay informed of upcoming amendments and trends in the law. We know the latest court decisions coming from remote counties that might impact how a judge decides a case here in Long Island. If there is a prior case out of the Family Courts that helps you, we will find it and bring it to the attention of the judge.

See our Articles, FAQs and Videos Library.

Experience

Family law disputes are not like other lawsuits. These disputes are governed by different laws and different judges. Although you can ask a criminal defense lawyer or an immigration attorney to handle your matrimonial or family law dispute, you should not be surprised if they are soon in over their heads and unable to provide effective representation. At Petroske Riezenman & Meyers, our attorneys and support staff have dedicated their careers to excellence and professionalism in the practice of matrimonial and family law.

Learn more About Us.

Results

We are proud to be highly recommended by the many satisfied clients we have represented over the years in divorce and Family Court cases. No attorney can promise a result, and we do not claim to. But experience counts. We have over 60 years of combined experience, which allows us to perform a complete review of your case and discover facts that work to your advantage. We understand the unique challenges that family law disputes create, such as the risk of domestic violence, impediments to negotiated resolution, or the possibility of harassing or vexatious litigation. To see the positive results we have achieved for others, check out our Client Reviews.

Petroske Riezenman & Meyers, P.C. staff