FREQUENTLY ASKED QUESTIONS

HOW EXPENSIVE ARE DIVORCES?

There is no direct answer to this question. Costs and expenses depend on multiple factors, including whether you hire an attorney, who that attorney is, and what they charge. Court costs often vary based on county, and the need for experts can greatly increase your costs. There are some things you can do to mitigate the expense of getting a divorce. First, try to come to as many agreements as possible with your spouse. This includes how to divide property, what things are worth, and determining the custody, visitation and support of any children you might have. Consider engage in alternative dispute resolutions, such as mediation or collaborative law. These processes encourage open lines of communication so that parties can reach a mutually agreeable resolution. Finally, be reasonable in your demands. Try and admit to yourself what is fair and equitable, and set aside any hurt feelings or emotions you might have. These emotions tend to cloud rational thinking. Finally, hire an attorney. You might feel you cannot afford one, but more likely than not they will get you an equitable result that you might be unable to obtain yourself. The divorce paperwork will also be done correctly, which could save you money in the future should any conflicts over the enforceability of certain provisions arise. It is worth the investment.

WHAT ARE THE GROUNDS FOR A DIVORCE?      

In 2010, New York became the last state where a ‘no-fault’ divorce was possible. That means that the parties have experienced an irretrievable breakdown of the marriage, and not that anyone was necessarily at fault. Fault grounds include cruel and inhuman treatment, the abandonment of the plaintiff by the respondent, the confinement of the respondent for at least 3 years after the marriage, adultery,  or living separate and apart pursuant to a decree, agreement, or judgment, for at least one year. With a no-fault divorce, there is no proof required  of fault before the court can determine the equitable distribution of property and custody of children. Filing a no-fault divorce can significantly reduce the costs of a divorce as well.

AM I GOING TO HAVE TO PAY SPOUSAL MAINTENANCE?

        There are presumptive guidelines in New York about provided temporary maintenance while the spouses are still married. Typically, the maintenance is paid by the spuse with the higher income, and the guidelines can be adjusted if the award is unjust or inappropriate. There is no requirement for permanent spousal maintenance to be paid after the spouses divorce. It is within the discretion of the court to do so, and it is usually based on the need of the recipient spouse. Limits on time are typically imposed by the court, and the support should be used only to provide a certain standard of living to the recipient spouse until they obtain a job, or training to ensure or enable them to support themselves independently.

DO I HAVE TO FILE FOR DIVORCE AT A SPECIFIC TIME?

        It depends upon the grounds you plan to allege for divorce, as the ground have specific time requirements. For example, on abandonment, you must should that you have been abandoned by your spouse for at least one year. If you allege incarceration, that incarceration must be for at least 3 consecutive years after the beginning of the marriage. For no fault, the party must swear that the marriage has been unworkable for at least the last 6 months. Otherwise, you can file a divorce action at any time.

HOW LONG DOES A DIVORCE TAKE?

        Again, there is no exact answer to this question. After the initial hearing before the court, trial is usually set within 6 months. However, in many cases, this is an optimistic time for resolution. It depends on how contested certain issues are, the size of the marital estate, whether there are children, how many attorneys are involved, and if expert testimony is required for any issue. You can contribute to the brevity of your divorce by being reasonable and listening to your attorney. Keeping lines of communication with your spouse open will go a long way to reduce the cost and time spent during the divorce process.

WHEN CAN I START DATING OR REMARRY?

        Unless the court has granted or approved of a separation agreement, you should not start dating someone else. This could be construed as adultery, depending on the situation, and could affect the outcome of your case. You cannot remarry until a final judgment for the dissolution of your marriage has been signed and entered by the court. Otherwise, you are at risk of committing bigamy. If you are confused on this issue, seek legal advice from a competent family law attorney.

MY SPOUSE AND I AGREE ON SOME ISSUES BUT NOT OTHERS. DO ALL THE ISSUES HAVE TO BE DECIDED BEFORE THE DIVORCE IS FINAL?

        Yes. All issues like support, custody, and property must be decided before the divorce can be finalized. The parties can either agree upon these issues, or have the court make a determination. If the issues cannot be proven or considered by the court, then the parties will simply remain married.

HOW LONG DO I HAVE TO LIVE IN NEW YORK BEFORE I CAN FILE FOR DIVORCE?

        Again, that depends. If the parties were married in New York and one party is still a resident when the action commenced and has been a resident for at least one continuous year before the action, then an action can be filed. Also, if the parties lived together as a married couple in New York when the action was filed and were residents for at least one year before the action commenced, the residency requirement is met. Another requirement can be fulfilled if the cause of action happened in New York and either party lived there for one continuous year before the commencement of the action or both parties were residents of New York at the time the action commenced. Finally, a divorce can be filed if either party was a resident of New York for at least 2 continuous years immediately before the action was commenced. After the divorce is filed, either party may move out of state. However, this decision could affect your rights to custody.

DO I NEED TO GET A DIVORCE IF ME AND MY PARTNER WERE LIVING AS HUSBAND AND WIFE BUT NEVER LEGALLY MARRIED – IN OTHER WORDS, COMMON LAW SPOUSES?

        New York does not recognize common law marriage; therefore, you do not need to get a divorce if you and your partner decide to part ways.

I AM ENTITLED TO HALF OF EVERYTHING, RIGHT?

        Not exactly. In New York, courts use the theory of equitable distribution, which focuses on equity rather than equality. Courts will divide property based on at least thirteen factors including needs of the children, earning capacity, age and health of the parties, fault of the parties, contributions to the marital estate, and the like. A licensed attorney can help you present your case for the best possible division by a court, but it will not necessarily be a 50/50 split between you and your spouse.