842 Route 25A, Northport, NY 11768
Badanes Law Office
Divorce Frequently Asked Questions
It is hard to predict exactly how long it will take you to get divorced in New York State. However, there are some general rules.
If you and your spouse agree on everything, without any exceptions, before you file for a divorce, then you can have an attorney file for an uncontested divorce. Typically, this means that the attorney will complete the paperwork and file it with the court. Some courts may still require you to show up in court, but, most courts will just accept the paperwork and grant you a divorce. Even in an uncontested divorce, you and your spouse will have to sign certain papers. Although, you should hire an attorney to complete the paperwork, you could attempt to do it yourself.
Once all the paperwork is submitted, it usually takes between 3 to 6 months for the court to verify and sign the Judgment of Divorce.
A contested divorce is basically any divorce that is not an uncontested divorce. Within this category, there could be divorces that take about 1 year and if the divorce is very complicated or if the parties want a trial, the divorce could take 2 to 3 years.Generally, it doesn’t matter if you got married in another State or in another country as to whether you qualify to get divorced in New York. However, if you were married in another State or another country, then in order to get divorced in New York, then you have to satisfy one of the following:
- Either you OR your spouse have lived in New York State for at least two years immediately prior to filing for divorce; OR
- Both you AND your spouse currently live in New York State at the time of filing for divorce.
So, as you can see, if you can satisfy one of the above requirements, you did not have to get married in New York to get divorced in New York.In New York State, all divorces are first heard by the Supreme Court. In New York, the original trial court is called the “Supreme Court”. So, although it is not called “Divorce Court”, Supreme Court is the Court that will issue a Judgment of Divorce, which is what makes your Divorce official.
It is possible that you personally do not have to see a Judge or go to Supreme Court. If you and your spouse agree to all the terms and conditions of your Divorce and you sign all the necessary papers, then your attorney can file the papers and inform the Supreme Court that your divorce is an “uncontested divorce’ and that no physical appearance is necessary. So, in those cases where you and your spouse agree, then you do not have to go to Supreme Court.Yes, you can get a divorce without your Spouse’s consent. Indeed, you can also get a divorce without your Spouse participating or showing up in court.
New York State is a no-fault divorce State, meaning that you do not have to establish any “fault” to get divorced. It also means that you do not need your Spouse’s consent to get divorced. The Court can grant you a divorce, regardless if your Spouse consents or doesn’t consent to the divorce.
Even if your Spouse never participates or show up in Court, you can still get a divorce. Although, you will have to go to Court and demonstrate that your Spouse was properly served and given notice of the Court date, the Court can still grant you a divorce — even without your Spouse showing up in Court.The best way to get started with a divorce is to consult with an experienced divorce attorney. An attorney can give you the best advice on what documents you will need and what steps you will need to go through.A divorce ends a legal marriage, an annulment treats a marriage as if it never happened. In New York State, there are certain “marriages” that are considered illegal from the onset and automatically qualify for an annulment, for example: (i) incestuous marriages; (ii) bigamous marriage; (iii) married by someone not authorized to do a marriage. There is a second category of “marriages”, that can be annulled, however, the “marriage” is considered legal until the Court grants the annulment. Those second categories of available annulments are: (i) the parties are not of the age of consent; (ii) one of the parties were incapable of consent; (iii) one of the parties was incapable of entering into marriage due to physical inabilities; (iv) the marriage was due to force, duress or fraud; (v) one party has an incurable mental illness for five or more years.Yes, you can get a legal annulment in New York State. I use the term “legal”, because, you may also be able to get a “religious” annulment, however, this FAQ only discusses the parameters of a legal annulment, meaning one that is obtained from a Court. In general terms, it is harder to get an annulment than a divorce.
Most people want an annulment for religious reasons. However, to get an annulment you do not need a religious reason. If you had children, you can still obtain an annulment and the annulment does not affect their status, they are still legitimate children. If you are granted an annulment, the court is still empowered to make awards of child custody, child support, spousal maintenance (alimony) and determine the division of assets and debts.
It is typically harder to get an annulment than a divorce, because you have to prove why the marriage was invalid or that it otherwise qualifies for an annulment.
There are three categories of “marriages” that are void from their inception. This means that the marriage technically never happened and that you are not really “married.” Despite this fact, it is wise to have a court grant you an annulment declaring that your marriage was void from its inception.
The three categories of “marriages” that are void from their inception are:
- Incestuous marriage: If you are closely related than New York State will not recognize your marriage. Some examples of incestuous marriages are Parent and Child, Siblings and marriages between Uncles/Aunts and their Nephews/Nieces. Even if these couples believe they got married, according to New York State, these marriages never existed. Indeed, a court can order a fine or even a prison term for parties that enter into an incestuous marriage.
- Bigamy: New York State does not recognize any bigamous marriages. If you are married to one person, you cannot marry another person. The second marriage never technically existed.
- Improper Marriage: Only certain people can actually perform a marriage ceremony. This list includes, but is not limited to, a religious leader, a leader of the Society for Ethical Culture, mayors, some magistrate, and judges. If your marriage was performed by someone who was not authorized to do so, you are not married. So in other words, your friend (unless he/she is on that list) cannot marry you.
In addition to “marriages” that are void and not really considered marriages, there are other categories of “marriages” that qualify for an annulment. These marriages are valid until an annulment is granted. Therefore, you have to go to Court to get these types of annulments. They are:
- Age of consent: In New York, you have to be of a certain age to consent to get married. If both parties are over 18 years of age, then the marriage is legal. If you are 17 years old, you can get married, but you need consent of the Court prior to the marriage to obtain the marriage certificate. In New York, you cannot legally get married if you are under the age of 17 years of age.
- Incapable of consent. If, at the time of the marriage, the person could not mentally understand that he/she was getting married, that marriage may be able to be annulled.
- Incapable of entering into marriage due to physical cause. If, at the time of the marriage, the person was unable to have sexual relations, then the marriage may be able to be annulled.
- Marriage was due to force, duress or fraud. If the marriage was brought about due to force, duress or fraud, then it may be annulled. An example of this would be if you threaten someone with violence unless they married you.
- Incurable mental illness for five or more years. This category does not require that the mental illness existed at the time of the marriage. Any time after the marriages, if one spouse develops an incurable mental illness for five years or more, then the marriage may be annulled.
You probably have heard about mediation and more specifically about using mediation to resolve your divorce. Before getting into the Pros and Cons of using a mediator, what is mediation?
In a divorce, a mediator is a neutral person who will help the divorcing couple reach an agreement about the terms and conditions of their divorce. The mediator does not represent either person, but, is there to facilitate the negotiations and also to make sure that all the issues of the divorce are covered. At the end of the mediation process, typically, the mediator will draft the divorce agreement (called “Stipulation of Settlement”).
The Pros of Mediation
The pros of mediation are as follows:
- Saves Money: The cost for mediation will typically be thousands of dollars less than each party hiring their own attorney.
- Saves Time: If the mediation is successful, most mediations will take only a couple of months. This compares to divorces that typically take several months to up to 2 or 3 years.
- You are in direct control of the process: Since you attend each mediation session, you have direct control and direct input into the process.
- Higher rate of compliance: After your divorce, especially when there are children involved, you will still have to deal with your ex-spouse. There is anecdotal evidence that couples who use mediation have a higher rate of complying with the divorce agreement than couples who use attorneys.
The Cons of Mediation
Although, there are many pros of mediation, there are also several disadvantages, they are:
- Lacking legal advice: Since the mediator cannot legally represent you, you are not receiving legal advice. Without an attorney, you may be agreeing to things that are not in your best interests and you may not be making the best decisions.
- Both parties have to be invested: If one party is only going “through the motions in the mediation and is not really invested in seeing mediation work, then mediation will not work and will be a waste of time.
- Could cost you more in the long-run: Although, mediation could save you money in the short term, it could cost you more in the long run. Without an attorney, you may make a financial decision that “seems fair” but, that is against your financial interests. Your financial decisions could cost you more money in the future.
- Could be a waste of time: If the mediation process doesn’t work, then the time that you spent in mediation would be a waste of time and could serve to further delay your divorce.
- Domestic Violence: When there is domestic violence, mediation is usually not a proper way to resolve the divorce.
After you are married, the default rule is that any assets that are acquired after your marriage are considered marital property. It does not matter if only one person is listed as the owner of the property, it is still considered marital property. So, for example, if after marriage, you buy a car, but, only one person is put on the title. That car is considered marital property. Another example, is if you open a bank account after marriage, even if only your name is on that bank account, that bank account will be considered marital property.
There are a few exceptions to the general rule of what is considered marital property.
- Gifts: If someone gave you an asset as a gift and it is clearly a gift only to you, then it starts out as separate property. However, to keep the gift as your separate property, you have to make sure that you do not convert it to marital property. An example will illustrate how that can happen. A relative gives you a gift of $1,000.00 and the check states that it is your separate property and a gift only to you. If you put the $1,000.00 in a joint account, you have now converted the separate property to marital property (there is also exception to this rule, but, for now, we will keep it simple). You can also convert the $1,000.00 into marital property, by taking the $1,000.00 and using it to pay off a marital debt (e.g., the mortgage).
- Inheritance: If you received an inheritance. Similar to a gift, if you received an inheritance, then that asset or money is your separate property. However, also like a gift, you can convert the inheritance into marital property.
- Personal injury awards: If you received a personal injury award, most or all of it will typically be considered your separate property. Yet, once again, if you take the money that you received and place it in a joint account, then the award money is now considered marital property.
An asset that was clearly acquired before marriage and which has only your name on its title (or your name and a third-party’s name) is considered separate property. Similar to converting a gift or an inheritance to marital property, it is possible to convert your separate property to marital property.
An example will demonstrate how this typically happens. Prior to marriage, you owned a house and your name is the only name on the deed. Clearly, at the time of marriage, this house is your own separate property. If, after the marriage, you put your spouse’s name on the deed, then you have converted your separate property to marital property (again, there are some limited exceptions to this rule).
Another common example of how separate property can be converted to marital property is a bank account. If you had your own bank account prior to marriage and never put your spouse’s name on that account and, after marriage, never put any additional money into that account (except for gifts and inheritances), then that bank account and the money in it would be considered separate property. Yet, if after marriage, you put your spouse’s name on the account or you put your income or other funds into that account, then either the entire account will now be considered marital property or part of it will be considered marital property.
It is important to remember that the presumption — that is the default – is that at the time of your divorce, all assets are considered marital property. It is up to you to prove that the asset is your separate property. You most likely will need documentation to prove this. This is why it is important to keep all records of any asset that you want to keep as your separate property.New York State is an equitable division property State. This means that marital property is divided “equitably” (fairly and in justice). In other words, property does not have to be divided exactly 50/50. One simple example, is in the division of cars. In most situations, each spouse’s cars are not worth exactly the same, yet as long as the Court believes that the division of the cars, in consideration of all other factors is ‘fair’, then that will be equitable and ordered by the Court. Or course, there are more complicated questions on how to divide property, this is why it is important to consult with an attorney.“Maybe”. Whether or not you qualify for Spousal Maintenance (also known as “alimony”) depends on your income, your spouse’s income, whether or not there are any children and the number of years you have been married. Several years ago, New York State passed a law where the amount of spousal maintenance is based on a formula.The duration of spousal maintenance is based on many factors. The most important factor is the length of the marriage at the time of filing for divorce. The New York State formula provides a guideline for how long spousal maintenance should last. That formula states:
For marriages between 0 – 15 years: The length of spousal maintenance should be 15% to 30% of the marriage.
For marriages between 15– 20 years: The length of spousal maintenance should be 30% to 40% of the marriage.
For marriages greater than 20 years: The length of spousal maintenance should be 35% to 50% of the marriage.Since 2016, the Courts are required to first use a formula as a “guideline” to determine what should the amount of spousal support (also known as spousal maintenance) be in New York State. The formula can be found on the New York State Courts website at this link:
I also list the formula at the end of this FAQ.
There are two different formulas to consider. One formula is where the person paying spousal support (called the payor) is also paying child support. The other formula is where there is no child support to be paid or the payor is the person receiving child support.
To use the formula, you need to know what is your Child Support Standards Act income. This income number is not your gross income and it is not your net income. For most people the way to calculate your Child Support Standards Act income is to first start with your gross income and from that number subtract the amount of money you pay to Social Security and Medicare. However, there can be additional income to consider, such as fringe benefits or money given to you by relatives. The best way to determine what your actual Child Support Standards Act income is, is to consult with an attorney.
Before you plug in your Child Support Standards Act income into the formula, you have to determine if your income is over the cap. As of 2020, the cap is $192,000.00. Every two years, the cap is increased by the rate of inflation. If your income is above the cap, you would just put in $192,000.00.
You also have to make sure that you use the right formula. The result of the formula will give you the amount of guideline maintenance. The Court is allowed to deviate from the guideline amount. The Court can deviate both upwards and downwards. This is where a good attorney earns their stripes. An attorney can present reasons why the guideline maintenance is either too little or too much.
The following is a table that shows the result of the formula for different income scenarios. The table assumes that Spouse 2 is always receiving maintenance
|Spouse 1 Income
|Spouse 2 Income
|Spouse 2 doesn’t pay child support
|Spouse 2 pays child support or there are no children
|$6,000 / year
|$10,000 / year
|$14,000 / year
As you can see, there is usually a large difference in whether or not you pay child support compared to not paying child support.
Here is the maintenance formula:
If you are paying child support and will also be paying maintenance, use this formula:
Line 1: Multiply your income by 20%
Line 2: Multiply the other spouse’s income by 25%
Result 1 = Subtract Line 2 from Line 1
Line 3: Compute 40% of the combined income
Result 2 = Line 3 – the other spouse’s income
The lower of Result 1 or Result 2 is the guideline amount of maintenance.
NOTE: if the guideline amount of maintenance is less than or equal to zero, then the amount is zero.
If you are not paying child support or there are no children, use this formula
Line 1: Multiply your income by 30%
Line 2: Multiply the other spouse’s income by 20%
Result 1 = Subtract Line 2 from Line 1
Line 3: Compute 40% of the combined income
Result 2 = Line 3 – the other spouse’s income
The lower of Result 1 or Result 2 is the guideline amount of maintenance.
NOTE: if the guideline amount of maintenance is less than or equal to zero, then the amount is zero.There is no “right” answer for how long you have to pay spousal support. In determining the amount of time that you have to pay spousal support, the court will consider the following:
- If your marriage was less than 15 years, then it may consider the duration to be 15% to 30% of the length of marriage. So, as an example, if your marriage was 10 years, then the duration of spousal support could be from 1.5 years (i.e. 1 year and 6 months) to 3 years.
- If your marriage was more than 15 years, but, less than 20 years, then it may consider the duration to be 30% to 40% of the length of marriage. So, as an example, if your marriage was 18 years, then the duration of spousal support could be from 5.4 years (5 years and 5 months) to7.2 years (7 years and 2 months)
- If your marriage was more than 20 years, then it may consider the duration to be 35% to 40% of the length of marriage. So, as an example, if your marriage was 25 years, then the duration of spousal support could be from 8.75 years (8 years and 9 months) to 10 years.
It is important to note that the Court has some discretion on how long spousal support should last. In addition to the above, the Court will consider many other factors in determining how long spousal support should be. The most important of those factors are:
- The age and health of the parties
- The present or future earning capacity of the parties, including a history of limited participation in the workforce;
- The need of one party to incur education or training expenses;
- The wasteful dissipation of marital property, including transfers or encumbrances made in contemplation of a matrimonial action without fair consideration;
- Acts by one party against another that have inhibited or continue to inhibit a party’s earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law;
- The availability and cost of medical insurance for the parties;
- The care of children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws provided during the marriage that inhibits a party’s earning capacity;
- The tax consequences to each party;
- The standard of living of the parties established during the marriage;
- The reduced or lost earning capacity of the payee as a result of having forgone or delayed education, training, employment or career opportunities during the marriage;
- The equitable distribution of marital property and the income or imputed income on the assets so distributed;
- The contributions and services of the payee as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party;
Similar to how assets are divided, in general terms each party is equally responsible for all the marital debt. Furthermore, each party is typically responsible for 50% of the total marital debt. In other words, if the debt was incurred during the marriage, then it is typically considered marital debt. It also does not matter if the debt is a credit card debt that one person incurred, that credit card debt is still considered marital debt. That credit card debt is still owed by each person equally.
There are a few exceptions. If the debt was incurred before you were married, then that debt is your responsibility. For many married couples, student loans were typically incurred before marriage and will be that person’s sole responsibility. If the debt was associated with something that is not in purpose of the marriage, then that may not be a marital debt. For example, if one spouse took a vacation with their lover and that vacation was put on a credit card, that credit card debt for the vacation would not be a marital debt.
In many divorces, marital debt can be very significant. It is important to consult with an attorney to determine how your marital debt will be divided.If your case is in Suffolk County, it helps to hire a divorce attorney who is familiar with the Suffolk County Judges and procedures. Each County and each Judge has their own procedures. Therefore, although you are under no obligation to hire an attorney who practices in Suffolk County, it usually will help you in your case.To file for a divorce in Nassau or Suffolk County, either you or your spouse has to reside in one of those counties at the time of filing for the divorce. However, you also have to satisfy other “residency requirements”. In general terms, at least one of the spouses has to live anywhere in New York State for at least one year before filing for the divorce. There are exceptions to this rule, therefore, you should consult with an attorney to see if you qualify.Yes. You and your spouse can live together and still file for a divorce. Indeed, you can get divorced and if you both agree, still live in the same residence after the divorce.Yes. If your spouse will not consent or agree to the divorce, then the Judge will order a trial. Since, New York State is now a “no fault” divorce State, you do not need your spouse’s consent to obtain a divorce. At the end of the trial, the Judge will grant you a divorce.To get a “true” uncontested divorce, you and your spouse have to agree on the following issues: (if you have children: child custody, child support and parenting time), spousal maintenance (a.k.a. alimony), division of assets, division of debts.No one can predict exactly how long it will take to finalize a divorce. Once all of the divorce forms that are required to file for an uncontested divorce have been filed with the Court, the forms will eventually be reviewed by a clerk. Provided the Clerk finds no errors in your forms, the Clerk will then pass the divorce papers to one of the Judges. The Judge will also read and review the divorce papers. Depending on the County you live in and how many divorces are being filed, it can take anywhere from 3 to 7 months before a Judge actually issues you a divorce (by signing the “Judgment of Divorce”).In New York, most Counties have an electronic filing system. The electronic filing system is available to both attorneys and non-attorneys. With an “online divorce, all the legal papers to effectuate your divorce are filed through New York State’s electronic filing system. However, if you are not an attorney, you can still file all your papers the “old fashioned” way – by using paper and filing in-person.Yes. As part of the divorce process, your attorney can indicate that you want to change your name back to your maiden name. Indeed, this is one of the simplest things to accomplish in your divorce. You do not need your spouse’s permission to revert back to your maiden name.“Probably – yes”. Prenuptial agreements are extremely useful for most couples. Prenuptial agreements are not just for the “rich and famous.” If prior to marriage, you have a pension (e.g., teacher, police officer, government employee or private employee with a retirement package), then you can protect the pension from being split to your soon to be spouse. Other examples where prenuptial agreements are useful are: (i) you own a business; (ii) you anticipate a large inheritance; (iii) it is a second marriage; and (iv) there is a significant income or wealth disparity between a couple.“Yes.” In New York State, the law presumes that the individual who earns a higher income may have to pay some (or all) of the other party’s legal fees. In the vast majority of cases, whether or not you will have to pay your ex-spouse’s attorney’s fees will depend on how much of a difference there is in your income and your spouse’s income. In some cases, a Judge could award attorney’s fees if one spouse has unduly delayed the divorce proceedings or presented false evidence to the Court.Yes. If you cannot locate your spouse, then it is possible to get a divorce. However, you have to get the Court’s permission on how to at least attempt service on your spouse. The Court will dictate what steps you will need to take in order to attempt to “find” your spouse. If you do not know where your spouse is, it is important to hire an attorney to help you through the Court’s process.Frequent Flyer airline miles are an asset. As with all marital assets, they most likely will be divided 50% to each party. However, most airline companies consider frequent flyer miles to belong to an individual and are not transferable. In those cases, the dollar amount value of the frequent flyer miles will have to be determined and each party is entitled to 50% of the value.If you are lucky enough to own partial or full season tickets to a sporting event or other venues, then the tickets are considered marital property. Depending on the situation, the Court may give each party 50% of the tickets, or one party 100% of the tickets and the financial equivalent to the other party, or the Court may order all tickets to be sold.Membership in a country club may dictate how membership is divided after divorce. Membership agreements are often ironclad, so the agreement of what will happen to your club membership could be determined by its terms and conditions when you buy it or receive it. However, a Judge has the power to order you to divest yourself of your club membership.Credit Card points are another example of a marital asset. Each party is generally allowed 50% of the credit card points. However, the credit card company may not allow the transfer of points to one party. Other cards will allow for the transfer of points between the divorcing parties. Regardless of the situation, the Courts will endeavor to have each party end up with 50% of the points or the financial equivalent of the same.In general terms, all debts, similar to assets, are considered “marital debts”. This means that both parties are equally responsible for all debts. As just one example it doesn’t matter if you never used your spouse’s credit card, generally all debts on that credit card are still considered as a marital debt. There are many exceptions to this rule, which is why it is important to consult with an attorney regarding debts.“Maybe – but highly discouraged.” There is no law that prevents you from dating while you are in the middle of your divorce. However, while you are in the middle of your divorce, it is usually not a good idea to get involved in the so-called “dating scene”. Your efforts should be focused on your divorce.Yes. Since, New York State is now a “no fault” divorce State, any reason or really no reason at all will qualify to grant you a divorce. If your spouse leaves you – for no reason, no communication or for any other reason, then you can get divorced.Most people who do not hire a lawyer, usually end up with a much worse result than if they hired an attorney. Even lawyers who do not practice in the area of matrimonial and family law know that it is better to hire an experienced matrimonial and family lawyer. Although, no one can force you to hire an attorney, you will almost get a more favorable result with an attorney than trying to do it yourself.You or your spouse have to establish legal residence in New York. There are Three different ways that you (or your spouse) can establish legal residency, they are:
- Either you OR your spouse has lived in New York State for at least two years immediately prior to filing for divorce. OR
- Both you AND your spouse currently live in New York State at the time of filing for divorce.
- Either you OR your spouse has lived in New York for at least one year immediately prior to filing for divorce. Additionally, you were married in New York, you both lived in New York during your marriage or the grounds for divorce occurred in New York.
In addition, you have to have “grounds”, but, since New York is a “no-fault” divorce State, you do not need any grounds.Typically, joint bank accounts are divided 50/50. If you have your own bank account, that is also usually divided 50/50. However, there are many exceptions to these rules and you need to consult with an attorney to see if those exceptions apply.The sex of the party has no effect on what a party is entitled to. You should always consult with an experienced divorce attorney before starting the divorce process. In general terms, you should have or start to get your financial documents together before filing for a divorce. You should consult with an experienced divorce attorney to know what your options are and what is a likely outcome.You no longer need to establish grounds in New York and you can simply request a divorce without having to prove anything. Typically, the only way a spouse can be forced to move out of the marital home is if there is domestic violence and a Judge Orders that the spouse relocate. Yes and no. You should be able to purchase a COBRA plan that allows you to use your spouse’s health insurance policy for up to three (3) years. However, if you do not purchase the COBRA plan, then you cannot remain on your spouse’s health insurance plan.If you want to file divorce papers without an attorney, you can file the papers at the County Clerk’s office. In Suffolk County, the County Clerk’s office will accept papers in their Central Islip and Riverhead locations. In Nassau County, the County Clerk will accept papers in Mineola.There are many “dos” and “don’t’s” in a divorce. Most of them are common sense. However, you should consult with your attorney on any specific questions you have in this area.Not really. In very limited exceptions, if one party has committed “marital waste”, the Court may consider that in determining how assets should be divided. For example, if one party used marital funds to buy illegal drugs, then that party may receive less than 50% of the marital assets as they “wasted” money on illegal drugs.Absolutely yes!!! In a divorce, there is the discovery process, where you get to request your spouse’s financial records. Your spouse is required to produce those records (there are very limited exceptions). A Separation Agreement is a written agreement that meets certain legal requirements. If the Separation Agreement is filed with the County Clerk, you are then “legally separated”. Whether or not a “separation” is better than a divorce, requires a lot of analysis, however, in most situations, there is no advantage to a separation.Since, New York is a no-fault divorce State, there is really no reason to file for a divorce based on abandonment. However, if you want to file for abandonment in New York, you have to meet certain legal requirements, it is best to consult with an attorney.The answer depends on HOW you want to change the agreement. If both parties agree to change the agreement and do so in writing, then the answer is almost always yes. However, if both parties do not agree to change the agreement, then it is very difficult to change a divorce agreement.Yes, if both parties want to cancel the divorce, then you can cancel the divorce process. However, you will have to file a certain form and may have to receive the Judge’s permission to cancel.The answer depends if the divorce is a simple uncontested divorce or is a very complicated divorce. It will also depend on each attorney’s fee structure and where you are getting divorced.Maybe – if you mean without physically going to a courthouse, then the answer could be yes. For simple uncontested divorces, all the paperwork can be submitted via e-filing and the parties never have to physically go to court. For all other divorces, you will have to physically go to court.You are required to disclose most, if not all of your finances.Yes, you can represent yourself. However, it is highly recommended that you hire an experienced divorce attorney, otherwise you might make serious mistakes that will negatively affect you.The Statement of Net Worth is a document that is required in most contested divorces and sometimes in uncontested divorces. In the Statement of Net Worth you list your expenses, income, assets and debts. It provides an overview of your current financial situation.Divorce mediation works when both spouses are able to compromise and discuss the issues involved in the divorce in an amicable fashion.Even if you don’t know exactly where your spouse is living, there is still a way to get divorced. You will need to consult with an experienced divorce attorney who can explain the process.If you can work out your differences, then you may be able to get a divorce without an attorney. There are many documents to file and without an attorney, you might not complete them correctly.Once you are divorced, the County Clerk should have a copy of your Judgment of Divorce. You would need to contact the County Clerk in the County in which you got divorced in.Yes, you can represent yourself and file for divorce without an attorney. However, this is not recommended, as you may be giving up valuable rights. An experienced divorce attorney can make sure you receive what you entitled to and protect your rights.Although, technically you do not need a lawyer to get divorced in New York, it is highly recommended that you hire an experienced divorce attorney to protect your rights.It is extremely unlikely that a Court would award you a free pro-bono attorney.No, it is a conflict of interest for one attorney to represent both parties.Not really. There is no preference to who files first in a Divorce. The only slight differences are:
- That the person who files will have to pay a small fee ($210) to file the Summons and/or Complaint to start the divorce.
- If there is going to be a trial (which are very rare) most of the time, the person who files first will also be the first person to go in a trial.
It is extremely unlikely that a Court would award you a free pro-bono attorney.It depends if your divorce is a simple uncontested divorce, where there are no children involved an no major assets owned by the parties or if your divorce is an extremely complicated divorce.
A simple uncontested divorce could take between 4 – 8 months in any New York county.
A complicated divorce could take between 1 – 4 years in any New York county.It depends on whether you and your spouse have children, own any major assets or what other issues are involved in your divorce. However, your divorce is important and you want to make sure you have an experienced attorney representing you.Most of the divorce laws are found in Domestic Relations Law section of the New York statutes and laws. DRL can be very complicated, which is another reason you need an experienced divorce attorney to protect your rights.At least in New York (and most likely in every State), the Answer is Yes – provided you meet some other criteria. If you were married in another State, you can still get divorced in New York, if: (1) If you and your spouse have resided in New York State (at some time) and either you or your spouse have been a resident of New York State for at least one year; (2) Either you or your spouse have both been living in New York State continuously for at least 2 years before the divorce started.If it is a “true” uncontested divorce where both parties fully cooperate and sign all papers, then an uncontested divorce can take from start to finish about 6 – 8 months. However, most of this time is the time it takes the court system to process the paperwork that is filed. In some cases, it is possible to expedite the process and in some other cases, if there are issues with the paperwork, it could take much longer for the divorce to be processed.The Statement of New Worth has many purposes. It gives both parties a snapshot of the assets, debts and income of each party. In this way, you know what assets and debts will need to be addressed in the divorce. It also states the sources of income for each party.In general terms, there are many parts to a divorce.
First part: Filing for the divorce. One party has to file a Summons with the Court, this starts the divorce process.
Second part: The Summons gets served. If the Summons does not get served, then although, the divorce has technically started, nothing will proceed without the summons getting served. If you can’t serve the other party, you can ask the Court for an alternative way to serve.
Third part: Once the summons has been served, the other party (called the Defendant) has either 20 or 30 days to respond to the Summons. Once the Summons has been responded to, there are two different directions that a divorce can take. In some cases, the parties will negotiate and resolve the divorce without getting a Judge or Court involved. In other cases, the parties will get a judge/court involved.
If a Judge/Court is involved, then the next part will be court conferences, discovery and possibly a trial (although typically less than 5% of cases go to trial).
If you do not get a Judge/Court involved, then the parties can complete the divorce by filing the necessary documents with the clerk.
The Final Part: the court issues a Judgment of Divorce, once that is issued, you are officially divorced.This depends on your personal circumstances. The process for a legal separation and a divorce are very similar. Some people want to stay separated for religious reasons. Others want to stay separated and then see if they can repair the marriage. If you stay separated, there are a few differences between being separated and being divorced. The main differences are: (i) if you are separated, you are still legally married, and cannot get re-married; (ii) there are tax differences between being separated and being divorced; (iii) if you are divorced, you can’t remain on your ex-spouse’s health insurance plan.Yes. Your net worth and your spouse’s net worth both have consequences in your divorce. A person’s net worth is typically made up of their real property, personal property (cars, jewellery, cash), stocks/bonds/mutual funds and retirement assets. In a marriage, most of one person’s net worth is most likely considered a marital asset. Since most marital assets will be divided equally, the more net worth the marriage has, the more net worth will be divided. In situations where part of a person’s net worth is considered their separate property, that could affect how much child support and how much spousal maintenance they either pay or receive. As an example, if one spouse has very little income but also has a great deal of assets, then they may not receive as much in spousal maintenance as a person with very little income and also very little assets.The answer is “maybe”. If your attorney files a “Notice of Appearance” for a Divorce case, the Attorney has to make it very clear what part of the case the Attorney is representing you for and what parts he/she is not representing you. For example, the Attorney could state that they are only representing you for anything to do with child custody but nothing else.
However, the Judge is not necessarily bound by what the Attorney states and could treat the Attorney as “all in” for all aspects of the divorce case.
If your Attorney does not file a “Notice of Appearance”, and as long as you don’t tell the Court that you have an attorney advising you, then that Attorney could represent you in “part of your divorce case.” This is pretty rare and most attorneys will want to represent you in all aspects of the divorce case.The selection of an attorney is a very personal and important matter. Some attorneys advertise that they are a “Father’s Rights Attorney”, yet there is no real definition of what this means. It is very rare that an Attorney would only represent “Father’s” and not represent “Mother’s”. Most attorneys will represent Father’s and Mother’s equally and vigorously. When you meet an Attorney, I believe it is more important to determine if you are comfortable with the potential Attorney then what the Attorney markets themselves as.Choosing an attorney is a personal choice. The same attorney might be “right” for one client and might not be the right choice for another client. Here, are some questions that might help you choose a divorce attorney:
- What is your policy in returning my phone calls or emails?
- Do you accept text messages?
- What is your policy in keeping me up-to-date with the status of my case?
- If I want to settle my case, what steps do you take to facilitate that?
- What are the pros and cons of going to trial (in my case)?
- What is your opinion about settling a case versus going to trial?
- Do you know my spouse’s attorney?
- Do you know the Judge that has been assigned to my case?
- Please explain what child custody means?
- What steps can I take to help me gain custody?
If you have little to no funds, but you are getting divorced, there are a few options. Some attorneys offer a Credit Service, where you can apply for a loan. Some Bar Associations have a list of attorneys who will charge a reduced fee – however, you must qualify. You should see if you have any assets you can sell.If the divorcing party have a mortgage, then typically that mortgage will be handled as follows: (i) the parties will need to pay off the mortgage; (ii) one party will be responsible to pay off the mortgage; or (iii) both parties will be responsible to pay off the mortgage.To obtain a “no fault” divorce, you have to state that the relationship has broken down irretrievably for a period of at least six months. So, although, there is no formal waiting period – meaning, you can file for a divorce at any time, you have to state that the marriage has been “broken” for at least six months.To obtain a divorce in New York, you do not have to state that your spouse “did anything wrong” or, in other words, show that your spouse “was at fault.” The only thing you have to state is that the relationship has broken down irretrievably for a period of at least six months. The Court does not ask you how it has broken down or any other questions about “fault”. So, it is now very easy to get a divorce in New York.Divorce Mediation is not for everyone. There are many situations where divorce mediation will not work. Typically, mediation will work when both parties are: (i) willing to compromise; (ii) willing to talk in a respectful manner and tone; (iii) neither party is trying to hide assets or information; (iv) the parties are not arguing about child custody issues; and (v) the parties are not arguing about financial issues.
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