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.