Everything You Need to Know about Divorce in Long Island
TABLE OF CONTENTS
- Understanding Different Types of Divorce
- Beginning the Divorce Process
- Necessary Financial Documents
- Required Divorce Forms
- Understanding the Divorce Petition
- Consequences of Ignoring or Refuting a Divorce Petition
- How to Approach Divorce in the Instance of Abuse or Neglect
- Protecting Yourself and Children from Abuse
- Drug Abuse and How Divorce Proceedings Work
- Pressing Criminal Charges In Addition to Getting Divorced
- Divorce Proceedings with Incarcerated Spouse
- Assessing Prenuptial Agreements to Decide Property Division
- How Prenuptials Work in Divorce Proceedings
- Determining How Assets and Debts Are Divided When Not Specified in a Prenuptial Agreement
- How a Prenuptial Agreement Can Become Null and Void During Divorce Proceedings
- Determining Property Division in a Divorce
- What Is Considered Communal Property?
- How the Court Determines a Fair Division of Debt and Assets
- How Inheritance Works When Courts Divide Marital Property
- Determining Debts and Assets
- Most Common Types of Assets Divided in a Divorce
- Most Common Types of Debts Divided in a Divorce
- How Student Loan Debt is Divided
- Factors of Asset and Debt Division that Affect Child Support and Spousal Maintenance
- Determining Child Custody
- Factors Used to Determine Custody
- How Custody Works Between Separated, Unmarried Parents
- Custody Mediation
- How Courts Decide the Best Interest of a Child When Determining Custody
- Types of Child Custody
- Physical Custody
- Legal Custody
- Joint Physical Custody
- Joint Legal Custody
- Sole Custody
- A Side-By-Side Comparison of the Different Types of Child Custody
- How Child Support is Determined in Different Types of Child Custody
- Laws Surrounding Child Custody Modification
- When Child Custody Can Be Modified
- How Child Custody Works with Relocation
- How Taxes Work When Factoring Child Custody
- Visitation Rights
- How Visitation is Determined in Child Custody
- How Fixed-Schedule Visitation Rights Work
- What Is “Reasonable Visitation”?
- Understanding Unsupervised Visitation
- Why Courts Sometimes Require Supervised Visitation
- The New Trend of Virtual Visitation
- Grandparent Visitation Rights and Requirements
- Determining Spousal Support
- Eligibility to Receive Spousal Support
- How Courts Consider to Determine Spousal Support Payment Amounts
- Required Financial Documents for Court-Ordered Spousal Support
- Factors that Increase Spousal Maintenance Payments
- Financial Factors
- Health Factors
- Age Factors
- Education and Employment Factors
- Length of Marriage Factors
- Factors Based on Behavior or Misbehavior
- Psychological and Emotional Effects
- The Negative Psychological and Emotional Effects of Divorce on Women
- The Negative Psychological and Emotional Effects of Divorce on Men
- The Positive Psychological and Emotional Effects of Divorce on Women
- The Positive Psychological and Emotional Effects of Divorce on Men
- Dating and Remarriage
- Statistics Surrounding Dating and Remarriage After a Divorce
- Coping with Your Ex-Spouse’s New Relationships
- How Dating and Remarriage Can Affect Previously Determined Divorce Court Orders
- Effects of Divorce on Children
- Statistics Regarding Divorce Impacts on Children
- Factors that Determine How Well a Child Will Cope with a Separation
- The Hyperbole of Negative Divorce Impacts on Children
- Helping Children Positively Cope with Divorce
- How Divorce Attorneys Charge for Services
- Fee Payment Plans and Divorce Settlements
- Determining the Cost of a Divorce Case
- How Fees Are Assessed When Retaining an Expert Witnesses
- How Attorney Fees Are Split Between Divorcing Couples
- Duties of a Divorce Lawyer
- The Difference Between a Trial or Transactional Divorce Attorney
- Settlement or Trial? How an Attorney Chooses What You Should Do in Your Divorce
- Representing You and Working with Your Spouse’s Attorney
- The Necessity of a Lawyer in the Divorce Process
- How Divorce Cases Are Assigned to Different Attorneys in a Law Firm
- What to Look for In a Divorce Attorney
- Years of Experience Practicing Divorce Law
- Trust, Comfortableness, Relatability, and Understanding
- The Importance of Courtroom Divorce Experience
- Knowledge of Child Custody Settlements
- Experience Enforcing Child Support and Spousal Maintenance
- Divorce Settlement Success Rates and How These Are Measured
I. Deciding to Get a Divorce
1. Understanding Different Types of Divorce
Fault vs. No-fault Divorce
When an individual wishes to file for divorce, they must file a petition for dissolution of marriage in New York. The petition must include information about whether or not the individual is filing for a fault divorce or a no-fault divorce. Our Long Island divorce attorneys can help you to understand the different grounds for divorce in New York, as well as which makes the most sense for you.
Grounds for Divorce in New York
A divorce may be sought on either fault or no-fault based grounds. As explained by the New York Courts, a seventh ground for divorce, the irretrievable breakdown of the marriage, or “no-fault divorce”, is now an option for separating couples. The additional six grounds for divorce are:
- Cruel and inhuman treatment;
- Living separate and apart pursuant to a separation judgment or decree; and
- Living separate and apart pursuant to a separation agreement.
As stated above, the newest ground for divorce in New York is the no-fault divorce, which is based on the irretrievable breakdown of the marriage. In order to seek a no-fault divorce, you and your spouse:
- Claim that the marriage has been irretrievably broken for at least six months; and
- You and your spouse have reached an agreement in regards to the many issues in a divorce settlement, including things like property division and child support; or
- The above issues have been decided by the court.
In order to seek a divorce on any of the fault-based grounds listed above, the divorce-seeking individual must prove the act of fault (i.e. adultery, imprisonment, abandonment), which can often prove challenging to do. For this reason, many individuals who have fault-based grounds on which to seek a divorce decide to pursue a no-fault divorce for simplicity’s sake. However, acts of fault may affect certain elements of the divorce settlement, which may make proving fault worth one’s while. For example, proof of cruel and inhuman treatment may affect a child custody decision, or proof of adultery may affect a court’s decision regarding property division or spousal support (particularly when the adulterous spouse squandered shared finances for the sake of the affair).
Filing for a No-fault Divorce in New York
Most couples who are parting ways are choosing to file for a no-fault divorce in New York, which is generally considered to be the easier path to divorce. If you are thinking about a no-fault divorce, remember that you or your spouse, or both, must believe that the marriage has been irretrievably broken for at least six months – living separately and apart may help to prove this. You must also come to an agreement about the issues in your divorce.
If you are thinking about pursuing a no-fault divorce, consulting with a lawyer can help, as can referring to What You Need to Know Before Starting Your Divorce Action, published by New York Courts. At the very least, you should start thinking about whether or no you want to pursue a fault-based or no-fault divorce, and what your ideal divorce settlement looks like.
Of the two divorce types–contested and uncontested–a contested divorce is both the more common and the more difficult of the two. Indeed, in a contested divorce, as the name implies, issues within the divorce are disputed and disagreed upon, making reaching a settlement that much more difficult. However, navigating a contested divorce is not impossible, especially when working with a skilled Long Island divorce attorney.
What Is a Contested Divorce?
A contested divorce does not mean that the issue of whether or not to part ways is in itself contested (although it may very well be); instead, it means that specific provisions of the divorce settlement are contested. The most commonly contested issues in a New York divorce include:
- Division of property;
- Custody of children;
- Child support; and
- Payment of spousal maintenance/alimony.
How Are Issues in a Contested Divorce Resolved?
If you and your spouse are in a disagreement about how to settle issues in your divorce, reaching an agreement can feel impossible, especially if the divorce has led to hostile feelings between the parties. However, reaching an agreement is necessary; if you and your spouse are unable to agree on the terms of your divorce, your case will go before a judge who will issue a decision based on the law and legal judgment. Having your case heard before a judge is expensive, time-consuming, emotional, and often does not result in the settlement you want.
Instead of turning to litigation as your first option, couples are asked to participate in mediated sessions with a third-party mediator. The mediator does not choose a side, so to speak, but instead facilitates conversation between the parties and assists them in reaching a settlement. By working with a mediator early on, you may be able to mitigate some of the stress and expenses that are associated with a contentious divorce.
Heading to Court with Your Spouse
Even the best attempts at mediation sometimes fail, and the divorce will be declared contested. When this is the case, parties must each fill out and exchange a statement of net worth, a preliminary conference will be held before the case is assigned to a judge, and the discovery process will unfold. Typically, a couple will once again be encouraged to attempt mediation or out-of-court settlement.
If such an attempt is futile, each party will have an opportunity to present their side of the issue to a court, the judge of which will ultimately issue a decision about the contested issue(s). As a note, divorce proceedings are similar to other trials, in that various forms of evidence may be presented, witnesses may be called, etc.
If your divorce is contested, working with a lawyer is of the utmost importance, especially if your case goes to court. An attorney can both represent you in the courtroom and offer guidance and support throughout the entire process. When you work with an experienced New York divorce lawyer, you improve your chances of a favorable outcome.
Most people associate the process of filing for divorce with hurt feelings, animosity between partners, and long, drawn-out legal battles. But divorce doesn’t have to be a contentious and upsetting process, regardless of how emotional separating from your spouse may be. In fact, many couples in New York choose to pursue an uncontested divorce process, which can mitigate the divisiveness that comes with a traditional, contested divorce. Learn more about uncontested divorces and the process of filing for an uncontested divorce by calling our Long Island divorce lawyers at the office of Petroske Riezenman & Meyers, P.C. today.
What Is an Uncontested Divorce?
In a contested divorce, parties in the marriage disagree about the various issues in a divorce, such as how property will be divided or with whom shared children will live. In an uncontested divorce, the opposite is the case – parties to the marriage both agree about getting a divorce, and agree about the terms of the divorce. There are no disputes about whether or not alimony will be part of the divorce settlement, where shared children will live or what a visitation schedule will be, or how property will be divided.
The Benefits of Uncontested Divorce
There are multiple benefits of uncontested divorce compared to traditional divorce. These include:
- Uncontested divorce mitigates litigation, therefore saving time and money and reducing stress;
- Uncontested divorce can preserve the relationship between parties, which may be important if parties have joint interests, such as a child;
- Uncontested divorce is faster than contested divorce;
- Uncontested divorce is more affordable than contested divorce.
How to File for an Uncontested Divorce
In New York, filing for an uncontested divorce is a straightforward and simple process. The process begins by filling out the appropriate paperwork (couples with children under age 21 will need to fill out specific paperwork that addresses custody of the child). Then, the papers will need to be signed and notarized, and the following must be filed with the county clerk’s office: summons and complaint, notice of automatic orders, notice regarding continuation of healthcare coverage, and a settlement agreement. At the time that you file these papers, you will also need to pay a filing fee.
After you have completed the above, the defendant (your spouse) must be served. Your spouse will then have an opportunity to respond to the divorce paperwork. Assuming that your spouse signs and returns the Affidavit of Defendant, you have an uncontested divorce. You can then have your case scheduled before the court immediately, where a judge will sign your divorce judgment and the divorce will be finalized.
What Else Should I Know About Pursuing an Uncontested Divorce in New York?
Filing for an uncontested divorce is the goal for most people, but it doesn’t always start out like this. In fact, many couples take weeks or months in order to reach an agreement – you should know that even if your divorce starts out contested, it can end uncontested. Working with various professionals, including a lawyer, mediator, or family counselor can help you and your spouse reach an uncontested divorce agreement.
When a couple is making the decision to divorce, they have a few different options regarding how they want the divorce to unfold. For example, the couple may–as a result of being unable to stand each other–aggressively attempt to negotiate the divorce, but end up going to court as part of divorce litigation with the help of a Long Island divorce attorney. Or, the couple may choose to negotiate their divorce in a slightly more amicable manner, each having to make concessions in order to reach an agreement, and both parties may walk away feeling “robbed.” Or, a divorcing couple may choose to approach their divorce in a collaborative manner, even going so far as to agree to not go to court in order to reach a settlement. When parties choose this third option, they’ve chosen a collaborative divorce process.
What Is Collaborative Divorce?
Collaborative divorce refers to the process of seeking a divorce in a collaborative, cooperative manner that removes the option of litigation from the table. This type of divorce is designed for parties who want to work together to reach a compromise in their divorce settlement, but still want the legal protections that working with divorce lawyers offer. During the process, parties will use techniques like mediation and negotiation to reach a divorce settlement, and both parties will agree from the get-go to approach conversations in an amicable way. In fact, parties may even sign a participation agreement that states that they will both voluntarily disclose any pertinent information, financial and otherwise; approach one another and conversations/negotiations respectfully and in good faith; and that both parties are in agreement that they will not go to court – in the event that going to court is absolutely necessary, the agreement also holds that representing attorneys must resign themselves from the case.
What Are the Benefits of Collaborative Divorce?
For couples who want to mitigate hurt feelings and reach a settlement that both parties feel good about, a collaborative divorce is the way to go. Some of the major benefits of collaborative divorce include:
- Because collaborative divorce forgoes litigation, this type of divorce is typically much less expensive;
- The collaborative divorce environment is non-adversarial;
- Couples who have children often preserve a sense of respect and care for one another during a collaborative divorce, something that can be critical for a child’s health development; and
- Through collaborative divorce, both parties are more likely to get at least part of what they want and feel like they had more control and autonomy in reaching the divorce settlement.
How Does it Work?
Collaborative divorce is typically approached step-by-step, beginning with hiring an attorney who supports mediation and is in agreement about avoiding litigation. After each party has hired their own attorney (one attorney cannot represent the best interests of both parties), the next step is creating a plan of what you want from a divorce settlement. Then, you and your attorney will meet with your spouse and their attorney, and mediated session/negotiations/conversations will unfold. If you are having trouble reaching an agreement, other professionals may be called in, including financial experts, child psychologists, and licensed mediators.
Once an agreement is reached, a settlement agreement can be drawn up, signed, and submitted to the court for approval.
While collaborative divorce is not for everyone, it can be a positive, cost-effective way to reach an agreement in a divorce and preserve a spirit of friendliness between yourself and your spouse.
Filing for and obtaining a divorce in the state of New York typically requires the participation of both of the parties to the divorce. Indeed, the standard divorce process begins when one party files a petition for the dissolution of the marriage, and the other party responds to the petition. However, in the event that one party fails to respond to the petition for divorce, the divorce-seeking party may be able to obtain the divorce by default. Our Long Island divorce attorneys can help you understand default divorce and your legal options.
What Is a Default Divorce?
A default divorce is a type of uncontested divorce. In a default divorce, the court grants a judgment of divorce that, typically, is in accordance with the stipulations that are issued in the original petition for divorce/summons. Some of the pros of a default divorce include the fact that default divorce is less expensive, disclosure can be avoided, and the divorce is usually obtained quickly. In some cases, couples will even agree to a default divorce in advance in an attempt to reduce the costs of a divorce.
Asking the Court for a Default Divorce
Any time that one party files a lawsuit against another party–in this case, a divorce suit–the other party has the right and the opportunity to respond. In New York, the plaintiff in a divorce case must file one copy of the summons and complaint of summons with the clerk; the other copy must be served to the defendant (their spouse) within 120 days. Then, the defendant has 20 days to respond to the complaint (or 30 days if the defendant is living outside of the state of New York).
If the defendant does not respond to the summons and complaint within the 20-day time period, only then can the plaintiff ask the court for a default divorce. In asking the court for a default divorce, the plaintiff must also present proof to the court that their spouse was actually served the divorce papers. This is done via an Affidavit of Service.
After the required waiting period has elapsed and the plaintiff has offered proof that the defendant was indeed served, a court will likely sign off on the divorce, granting the plaintiff the terms of the divorce that they requested.
Do I Need a Lawyer?
Whether you are a plaintiff or a defendant in a divorce case in New York, working with an attorney is strongly recommended. If you are the plaintiff, your attorney can guide you through filing and serving the petition for divorce (summons and complaint), and what to do if your spouse defaults (doesn’t respond), or responds in a manner that is in contrast with your requests and you have a contested divorce. If you are a defendant, your attorney will represent you by ensuring that you respond to a complaint within the required 20-day timeframe and therefore do not put yourself at risk of a divorce judgment that isn’t in your favor. If you have defaulted, a lawyer can guide you through your options. Indeed, in all cases, having an attorney review a proposed settlement is, at the very least, a wise idea.
Since July of 2011, when same-sex marriage gained official legal recognition in the state of New York, gay couples have been saying “I do.” However, even the most passionate of love sometimes fades, and today, many married couples–same-sex and otherwise–are considering divorce. Our Long Island divorce attorneys at the office of Petroske Riezenman & Meyers, P.C. have been helping couples navigate the unique issues in same-sex divorce for years, and can represent you if ending your marriage is inevitable.
Unique Issues in Same-Sex Divorce
For the most part, same-sex and straight couples face many of the same issues when ending a marriage, including the responsibility of making determinations about property division, alimony/spousal support, and the type of divorce the couple wants to pursue (i.e. collaborative divorce, contested vs. uncontested divorce, etc.). What’s more, the process for filing for a divorce, including filing a petition for divorce and ensuring that the complaint and summons are served to one’s spouse, is the same.
However, where things sometimes get more complicated for same-sex couples is in regards to any children of the marriage. This is because any children to the marriage are not biologically related to both parents; sometimes, there is no biological relationship to either parent. To be sure, one party to the marriage may have adopted the child, both parties may have jointly adopted the child, or the DNA of one of the parties of the marriage may have been used to conceive the child. When one parent is the biological parent and the other is not, there may be an underlying presumption that the biological parent maintains the right to custody of the child; however, this is not always the case, particularly in the event that the other parent has adopted the child and is therefore a legal parent, too. In addition to child custody, there also may be questions about child support and visitation, including the visitation rights of non-biological grandparents, siblings, and other family members.
Same-sex couples who have been together for many years prior to getting married may face another issue: Will the total length of the relationship be considered when determining a spousal support amount, or just the length of the marriage? What about marital property? If the couple was living together for 10 years prior to marriage, will all property acquired over the course of the marriage be considered marital property, or just that property acquired after official vows were entered into? These questions do not always have clear answers, and working with a lawyer who will review the specifics of your case and provide you with relevant advice and insight is recommended.
You’re Not Alone
Going through a divorce can be an intimidating and lonely experience, especially when the divorce is contested and you and your partner are at odds. Fortunately, skilled divorce attorneys in New York are well-versed with the state’s divorce laws, as well as the unique issues that same-sex couples often face when deciding to separate.
How Arbitration Works
When getting a divorce, there are a number of different ways that the issues in a divorce may be settled. For example, couples may simply reach an agreement privately before even filing for a divorce, or they may choose to attend mediated sessions with one another to negotiate their divorce terms. If an agreement cannot be reached, a couple may choose litigation (going to court) or arbitration in order to get a divorce judgment.
If you are unfamiliar with the process of arbitration, our Long Island divorce attorneys can guide you through this process and its advantages and disadvantages. Below is a brief overview of what arbitration is and the benefits and drawbacks it provides for reaching a settlement in a divorce.
What Is ArbitratIon?
Arbitration refers to the use of an arbitrator in order to settle a dispute. Rather than heading to court, arbitration allows both agreeing parties to present evidence to a third-party arbitrator. The arbitrator is usually someone selected and agreed upon by both parties, who are then bound to the arbitrator’s decision. The American Bar Association explains that in some ways, arbitration is similar to a trial. For example, both parties will usually make an opening statement and will also present evidence to the arbitrator supporting their side.
Benefits and Drawbacks of Arbitration
On the surface, arbitration may appear to be very similar to a trial, and for that reason, a divorcing party may wonder what the advantages of arbitration over litigation might be.
- Privacy. While trials are typically public record, arbitration proceedings are private. If you desire privacy and want to keep the outcome of your divorce settlement confidential, arbitration may be a better choice.
- Cost effective. While it would be incorrect to classify arbitration as cheap, arbitration is also usually much less expensive than litigation. If you want to save money, arbitration may be the right choice.
- Speed. For those who want to get a divorce judgment quickly and move on with their life, arbitration is typically much faster than is filing a lawsuit and litigating a divorce.
In addition to the above, one reason that many people choose arbitration over litigation is that it is more flexible and less formal than litigation. Many people are more comfortable with arbitration because they are often able to handle disputes and property division on their own terms
Of course, arbitration comes with a few drawbacks or it would likely be everyone’s preferred method of divorce resolution. In addition to the cost associated with arbitration, another drawback is the outcome of an arbitration decision is often final. This is called “binding” arbitration. When arbitration is binding, the outcome can be enforced by a judge, and an appeal of the decision can only be pursued in very limited circumstances.
Discuss Your Options
Before you decide how you will settle your divorce, it’s best to speak to your spouse and your attorney about your options. Depending upon your circumstances, one method of resolution may be more advantageous than another.
How Mediation Works
Ending a marriage requires more than just moving out of a shared home; in order to legally dissolve a marriage, a couple must turn to the court and must resolve various issues before the divorce can be finalized. These issues include, but are not limited to, disputes about property division, child custody, and alimony. While such issues may be addressed in litigation, Long Island divorce attorneys and the court typically recommend–if not require–that couples try mediation first. Here’s an overview of how mediation works in a New York divorce case–
What Is Mediation?
Mediation, which may be court-ordered or voluntarily, refers to a process by which parties seek to resolve disputes and disagreements outside of the courtroom. During meditation, the conversation about issues to be resolved will be facilitated by a third party, called a mediator. The mediator is not a judge, nor someone who will take sides or express their own opinion regarding the matters at hand; rather, the mediator is neutral and has the job of guiding the conversation and helping interested parties come to a compromise.
Mediation can be formal or casual, but the main objective is for both parties to walk away feeling as though they were able to express themselves and get something that they want out of the mediation. When mediation is successful, parties can avoid litigation, which is expensive and time-consuming.
Stages of Mediation
A formal mediation will involve various different steps, beginning with introductory remarks from the mediator, who will outline the purpose of the mediation, the issues at hand, and the roles and expectations of those participating in the mediation. Protocol and schedules will also be addressed. Then, each party to the dispute will be given an opportunity to state their view of the problem and what they want – this is an opportunity to tell one’s side uninterrupted.
After all opening statements have been made, the information gathering phase of mediation will begin. Typically, this involves the mediator asking questions to both parties, allowing each party to provide information about the problem. The mediator may repeat information back in a new way, helping parties to reframe the issue and see the issue from the other party’s perspective. This is also a time when the mediator will attempt to identify some common objectives that the parties share; identifying common goals is one way to unite the parties and help to mitigate frustrations and conflicts.
The next stage is negotiation and bargaining. Before bargaining fully begins, however, it is smart to brainstorm various resolutions, putting all options on the table, even those to which the parties are opposed. Once all options have been presented, participants can begin negotiating. The mediator will meet with both parties together, as well as each party individually in hopes of moving negotiations along and reaching a settlement.
Once parties reach an agreement, they can present the agreement to a judge. If no agreement is reached and mediation fails, the case will proceed to litigation.