NEW YORK ALLOWS FOR NO-FAULT DIVORCE
Under New York’s family law code (DRL §170.7), married couples have the right to obtain a ‘no-fault’ divorce. With this type of divorce, neither party need be legally ‘blamed’ for the end of the marriage. Instead, a divorcing couple must simply meet the state’s residency requirement and prove that their marriage is ‘irretrievably broken’. How does one prove that? It is not especially difficult. Indeed, the testimony of just one of the spouses is generally enough.
While no-fault divorce offers a number of benefits and it can make the process much more efficient, it is not necessarily easy. While fault may not be a contested issue, there are many other things that will still need to be resolved. Among others, this includes property distribution, division of debt, spousal support/spousal maintenance, and, if the couple has young children, child custody/visitation, and child support obligations. If you are seeking a no-fault divorce, you should be represented by an experienced Long Island divorce attorney.
You Have the Right to Seek a Fault-Based Divorce
In New York, you also have the ability to file for a fault-based divorce. In certain circumstances, there may be advantages to seeking a finding of fault. Some common grounds on which you can seek a fault-based divorce in New York include:
- Cruel and inhumane treatment that endangered the physical or mental well-being of their spouse;
- Intentional abandonment of at least one year;
- Imprisonment for at least three consecutive years during the marriage; and
- The commission of an adulterous act.
To get a finding of fault in your divorce case, you must be able to present compelling evidence that supports the nature of your claim. In these types of cases, it is crucial that you get an aggressive Long Island divorce lawyer by your side as early as possible.
You May Be Eligible to Get an Annulment
In some cases, a marriage can be annulled. Whereas divorce ends a marriage, an annulment nullifies a marriage. The end result is the same (the marriage ends) but the process and implications can be different. With an annulment, it is essentially as if the marriage never happened in the first place. To obtain an annulment, your marriage must meet certain strict criteria. Only a limited number of Long Island couples are eligible to get their marriage annulled. Though, if you are eligible and you are ending your marriage, an annulment may offer certain benefits.
CONTESTED DIVORCE vs. UNCONTESTED DIVORCE
In a contested divorce, the spouses are unable to reach a settlement on one or more of the core issues in their case. As a result, they will need to take their case to court in order to have it adjudicated by a family law judge.
In an uncontested divorce, the parties have been able to reach a settlement on all relevant issues. They will be able to terminate their marriage without the need for a trial. Generally, an uncontested divorce is desired. This is also sometimes known as a ‘simple divorce’ and it can be far faster (and cheaper) than a contested divorce.
Of course, even with an uncontested divorce, you should still seek professional guidance from a top-rated Long Island divorce lawyer. In many cases, an uncontested divorce is only finalized after several sessions of divorce mediation or informal negotiation between attorneys. While it is entirely understandable that many people want to get through the divorce process as quickly as possible, it is important to remember that you should never finalize your divorce settlement until all issues are resolved and you are certain that your rights and interests are properly protected. You are not yet ready to finalize a divorce if you are still in a dispute over any of the following issues:
- Child custody;
- Child visitation rights;
- Child support payments;
- Alimony; and
- Property/debt division.
THE STEPS OF THE DIVORCE PROCESS IN NEW YORK
The actual process of filing for divorce in New York is notoriously complex. At this emotionally raw time, dealing with the paperwork can be frustrating and overwhelming. Unfortunately, far too many people make avoidable mistakes on their divorce papers that cause them serious headaches. Paperwork or filing errors often result in delays; though in the worst case, mistakes can even lead to a person losing out on their rights. It is highly recommended that you work with a dedicated Long Island divorce attorney who can help you navigate the ins and outs of the filing process. This includes:
- Preparing the Complaint: You may need to file a divorce complaint. If you are the one a seeking divorce, your complaint is essentially your motion to obtain the separation. In some cases, divorcing couples can work collaboratively through this stage of the process. Though, you may need to file a complaint on your own. If so, it is crucial that you take the time to prepare a proper divorce complaint. This document establishes the entire legal foundation for your claim. You need to get it done the right way.
- Getting Your Documents in Order: One of the keys to obtaining a successful divorce settlement/judgment is proper preparation. When it comes to divorce, you need to get your documents and records in order as early on in the process as possible. This starts with financial documents and records. Though, it could include other evidence as well, including evidence related to parenting ability or misconduct on the part of your former partner. Regardless, your Long Island divorce lawyer can help you put your case in order.
Serving Divorce Papers: After you file a divorce petition in New York, you are legally obligated to serve divorce papers on your spouse. In many cases, this is a relatively easy step. However, there are also certainly Long Island divorces where one spouse tries to dodge the service of your papers or just makes things difficult on their partner. No matter the circumstances, you should always comply with New York state law regarding service of documents.
Responding the Answer/Counterclaim: If you filed a divorce petition and served papers on your partner, they will have the opportunity to file an ‘answer’ and/or a ‘counterclaim’. Likewise, if divorce papers were served on you, you can and should file an answer/counterclaim. Ignoring divorce papers is always a bad idea. If you are going through a divorce in Long Island, you need to be proactive. Get help from an experienced family law advocate.
Once the complaint and answer/counterclaim has been filed with the court, the divorce case will be on the path to litigation. This does not mean that your case will go to trial. Quite the contrary; most divorces in Long Island avoid trial. There is still ample time for you and your partner to reach a fair settlement. Your divorce lawyer can help you facilitate negotiation, while vigorously protecting your parental rights and financial interests.
NEW YORK LAW: CHILD CUSTODY AND VISITATION
In New York, child custody and visitation disputes are resolved under the state’s ‘best interests of the child’ guidelines. It is crucial that Long Island parents understand how this legal standard will impact their case. In the simplest terms: New York family law courts will make child custody and child visitation decisions based on what is best for the children. The wants and needs of the parents will always be a secondary factor. To get the best possible results in your child custody case, you need to be prepared to show that you can provide the very best environment for the health, safety, and well being of your kids. New York family law courts will consider a broad range of factors when assessing child custody cases. Some common examples include:
- The relationship each parent has developed with the child;
- The primary caretaker of the child prior to separation;
- Overall stability each parent is able to offer;
- Demonstrated parenting ability;
- Physical health of each parent;
- Mental health of each parent;
- The financial status of each parent;
- The home environment each parent is able to provide;
- The court’s observations of the parents;
- Evidence of substance abuse problems; and
- Any history of violence or abuse.
NEW YORK CHILD SUPPORT GUIDELINES
If you are a parent going through a divorce in Long Island, child support may be a very important issue in your case. The state of New York has official child support guidelines that are used as a basis in these cases. Family law courts presume that the state’s child support guidelines will be appropriate for your case. Under these guidelines, the following should be awarded to the custodial spouse from the non-custodial spouse:
- One Child: Seventeen percent of gross income;
- Two Children: Twenty five percent of gross income;
- Three Children: Twenty nine percent of gross income;
- Four Children Thirty one percent of gross income; and
- Five or more Children: A minimum of thirty five percent of gross income.
There are cases in which it is appropriate to deviate from the child support guidelines. If there are special circumstances in your case that warrant such a result, such as a child’s disability or health status, you need to take proactive steps to ensure that your legal rights and financial interests are protected. A Long Island divorce lawyer with experience handling child support and child custody issues can help. Depending on the specific nature of your case, child support may be awarded at a level that is less than or greater than the general guidelines.
YOUR CASE DESERVES PERSONALIZED ATTENTION
We are proud to be the premier matrimonial and family law firm serving communities throughout Long Island. If you are getting divorced, our attorneys are prepared to provide you with the very best legal representation. We always give each case the individualized attention and care that it deserves. No two divorces are exactly alike. Our Long Island divorce lawyers will listen to your story, carefully assess your case, and craft a legal strategy that is best suited to help you reach your desired goals. Among other things, our New York divorce attorneys will:
- Make sure that we understand your interests and your goals;
- Listen to you and respond to your needs with compassion;
- Handle all paperwork and divorce filings;
- Prepare all of your financial documents and financial records;
- Get ready for child custody/child visitation discussions;
- Fight to protect your parental rights;
- Negotiate to get you a fair, successful divorce settlement; and
- Advocate for your family law rights through litigation.
We are committed to getting you the best results for yourself, your children, and your family. In some cases, collaborative negotiation is the best way to move forward in a fair manner to preserve vital family relationships. In other cases, our Long Island divorce attorneys fight aggressively on behalf of our clients, making sure that their rights and interests are fully protected from a former partner who is making entirely unreasonable or unfair demands.