Resources

A GUIDE TO DIVORCE IN NEW YORK STATE

By: Andrew H. Wood, Esq.
ANDREW H. WOOD, ESQ., PLLC
12 SHERIDAN AVENUE ALBANY, NEW YORK 12207 PHONE: (518) 694 — 8875
E-MAIL: ANDREW@AWOODES2.COM

DISCLAIMER

The information provided within this guide is for general informational purposes only and should not be construed as legal advice or legal opinion on any specific facts or circumstances. This guide is not intended to create, and receipt or viewing of this information does not constitute, an attorney-client relationship.
The content of this guide may be considered advertising under applicable laws and ethical rules. Prior results do not guarantee a similar outcome. Every case is different and must be judged on its own facts and merits.
Transmission of information from this guide is not intended to create, and receipt does not constitute, an attorney-client relationship between the sender and receiver. Viewers of this material should not act upon any information contained within this guide without seeking professional legal counsel.

INTRODUCTION

Take a deep breath, relax for a minute, and realize that you may be embarking on the next phase of your journey through life. Divorce has inevitably crossed your mind if you are taking the time to read this guide. Whether you or your spouse are contemplating a divorce, you have been unexpectedly served with divorce papers, you are in the midst of a matrimonial proceeding or are seeking guidance on post-judgment issues, there is no doubt that you have many concerns about the process and the uncertainties that lie ahead for you and your family.

Once divorce becomes inevitable, the first step that many people take is to seek an attorney to represent them in their divorce matter. You will likely contact one or more attorneys and schedule a consultation to discuss your circumstances. While each attorney conducts the initial consultation in a unique manner, you can expect to discuss, among other things, the divorce process and your legal rights and obligations.

I have written this guide to provide a basic understanding of the divorce process and to provide readers with options that may be available to them in resolving their matrimonial matter. Divorce often evokes a range of emotions and challenges that you never contemplated when you said "I do." I sincerely hope that this guide helps you to better understand the divorce process in New York State, reduce the anxiety that you may be feeling and provide you with the basic knowledge that you will need to navigate your divorce with confidence.

As an experienced legal practitioner in the field of matrimonial and family law, I represent clients in Supreme and Family courts throughout New York State. After meeting with a client, understanding their desires and gathering the necessary facts, I strive to provide each client with a realistic outcome and a plan to attain the desired results. The plan can be as straightforward as drafting an agreement for the other spouse and/or his/her attorney to review and then finalizing his/her divorce. In more complex cases, we may need to plan for extensive discovery, property and business valuations, forensic psychologists (in custody cases) and the retention of expert witnesses. Our office is trusted by clients throughout New York State to counsel them on the legal issues involved their matrimonial and family court matters.

UNDERSTANDING DIVORCE IN
NEW YORK STATE

A. WHAT ARE THE LAWS IN NEW YORK STATE?

While there are many different laws or statutes applicable to matrimonial proceedings, many of the laws that affect divorce proceedings are found in the New York State Domestic Relations Law (“DRL”). You will regularly see references to the “DRL” in your
pleadings, motion papers, court orders and correspondence. These are references to a particular section of the Domestic Relations Law that is applicable to the issue being addressed.

A. RESIDENCY REQUIREMENTS

You can only get divorced in New York State if you meet the residency requirements. Most individuals seeking a divorce in New York State meet the residency requirements, however, it is a basic piece of information that needs to be determined before you pursue a divorce in New York. The residency requirements are set forth in DRL §230. You meet the residency requirements to pursue a divorce in New York State if:

  •  You and your spouse were married in the New York and either party is a resident of New York when the action is commenced and has been a resident for a continuous period of one year immediately preceding the filing of your action for divorce;

OR

  • The parties have resided in New York as husband and wife and either party is a resident of New York when the action is commenced and has been a resident of New York for a continuous period of one year immediately preceding the filing of your action for divorce;

OR

  • The cause for divorce occurred in New York and either party has been a resident of New York for a continuous period of at least one year immediately preceding the commencement of the action for divorce;

OR

  • The cause occurred in New York and both parties are residents of New York at the time of the commencement of the action for divorce;

OR

  • Either party has been a resident of New York for a continuous period of at least two years immediately preceding the commencement of the action for divorce.

You only need to meet one of the above requirements to commence an action for divorce in New York State

WHAT ARE GROUNDS (I.E. LEGAL REASONS) TO SEEK A DIVORCE IN NEW YORK STATE?

In New York State, a party must allege a "ground" for seeking a divorce. The term "ground" essentially means a legally recognized reason for seeking a divorce. Pursuant to DRL §170, there are seven (7) grounds for seeking divorce in New York State. The most commonly used ground, in seeking a divorce in New York, and, in my opinion, the only ground that should be alleged, is set forth in DRL §170(7), which provides for a divorce based upon an irretrievable breakdown in relationship for a period of at least six months. This is commonly referred to as a "no fault" divorce.
In order to seek a divorce based upon "no fault," all that is necessary is for the person seeking a divorce to sign a document that states the relationship between them and their spouse has broken down irretrievably for a period of at least six months. By alleging "no fault" you will save yourself significant time and attorneys fees by avoiding the need to prove that another-ground for divorce exists, such as adultery or cruel and inhuman treatment   "No fault" divorce should not be confused with "uncontested" divorce. Although you may seek a divorce based upon "no fault," your divorce will not be finalized until all issues involved in your divorce action are resolved. Depending on the circumstances of your matter, these issues may include: (1) economic issues of equitable distribution of marital property, (2) the payment or waiver of spousal support, (3) the payment of child support, (4) the payment of counsel and experts' fees and expenses and (5) custody and visitation of the children of the marriage. The approach taken to resolve these enumerated issues will determine if your divorce action will be "contested" or "uncontested." Contested and uncontested divorces are addressed later in this guide.

Additional grounds for divorce, as set forth in DRL §170 are:

  •  Cruel and inhuman treatment of one spouse by the other;
  • Abandonment;
  • Confinement in prison for a period of three or more consecutive years after the marriage;
  • Adultery;
  • Living separate and apart pursuant to a decree or judgment of separation for a period of one or more years; and
  • Living separate and apart pursuant to a written separation agreement for a period of one or more years after the execution of the agreement.

ADVANTAGES OF MEDIATION

Control Over Outcome:

Mediation allows couples to have greater control over-the divorce process and the decisions made. By actively participating in negotiation of their divorce issues, the parties can control the outcome of their divorce on terms that are satisfactory to both, rather than a judge making the decisions for them.

 Faster Resolution:

Generally, mediation is much faster than seeking court intervention to resolve conflicts. The parties have more control over the process and can schedule sessions at their convenience as opposed to the delays associated with court appearances.

Cost-Effective:

Generally, mediation is less expensive than going to court. The process involves fewer or no court appearances, reduced need for motion practice and other court proceedings and less attorney involvement in negotiations. As a result, the overall fees paid to an attorney will generally be less than the cost of pursuing a contested divorce.

Preservation of Relationships:

Mediation focuses on resolving conflicts amicably and fostering communication between the parties. Couples that use mediation as a tool to resolve the issues involved in their matrimonial case are more likely to maintain a respectful relationship, which is especially beneficial when children are involved.

DISADVANTAGES OF MEDIATION

Imbalance of Power:

In situations where one party exerts power over the other, in any manner, mediation is not an ideal option. In these cases, often one party will dominate the negotiation process or intimidate the other party, which will inhibit effective communication and compromise, and will lead the more passive party to agree to terms based upon fear or to get relief from the negotiation. Similarly, if one party is more skilled at negotiation or has greater knowledge of the relevant legal issues, there is a possibility for an uneven outcome. This can result in one party feeling disadvantaged or coerced into accepting terms that may not be in his or her best interests.

Inability to Resolve Complex Legal Issues:

Some divorce cases involve complex financial, property or child custody issues that require detailed legal or expert analysis. Often, mediation is not ideal for couples when there are intricate matters that require expertise in a particular area.

Lack of Enforcement:

Agreements or MOUs reached through mediation are typically not legally binding until they are converted into a legally binding agreement that is signed by both parties. This means that you may go through the entire mediation process, pay the mediator for his or her time and preparation of the MOU, and then have one party decide that they do not agree with the terms. If this happens, you are at the same point that you were prior to starting the mediation process, and you have needlessly spent your time and money.

You should consult a matrimonial and family law attorney to determine if mediation is appropriate for you.

COLLABORATIVE DIVORCE

Collaborative divorce is an alternate dispute resolution method where the couple works together with attorneys and other professionals to reach a mutually acceptable agreement on the issues involved in their divorce, Tn addition to their attorneys, parties may include a variety of other professionals, such as financial experts, financial advisors and mental health professionals to provide guidance and support.
With collaborative divorce attorneys participate and advocate for their respective client’s interests, but within the collaborative framework. The attorneys retained for the collaborative divorce strive to ensure that their client’s concerns are addressed and that their objectives are met without disparaging the other party. Attorneys may also assist clients in assembling their-collaborative team with other professionals.

As with Mediation, there are advantages and disadvantages to collaborative divorce. The advantages and disadvantages of Collaborative Divorce are:

ADVANTAGES OF COLLABORATIVE DIVORCE PROCESS

Maintaining control:

In collaborative divorce, both parties have greater control over the outcome of their divorce. They actively participate in negotiations and decision-making, working together to find solutions that meet their unique needs and priorities. This can lead to more satisfying and personalized agreements compared to decisions imposed by a court

Reduced (1291.1j_ltin_p_myed communication:

Collaborative divorce promotes open and respectful communication between the parties. It encourages cooperation and problem-solving rather than escalating conflict. By focusing on effective communication, the process can help to preserve or improve the relationship between the divorcing spouses, which is especially important when there are children involved.

Cost-effectiveness:

Collaborative divorce can be more cost-effective compared to litigation. Since the parties work together and share the cost of professionals involved in the process, such as attorneys, financial experts, and therapists, it can often be less expensive than engaging in a lengthy court battle.

Efficiency and timeliness:

Collaborative divorce can generally be resolved more quickly than traditional litigation. By avoiding court delays and the need to adhere to court schedules, the process can save significant time and allow the parties to move forward with their lives sooner.

Pict s on long-tern solutions:

Collaborative divorce encourages the parties to consider their long-term goals and the best interests of everyone involved, especially children. By focusing on mutually beneficial solutions, the process aims to create sustainable and durable agreements that can provide a foundation for future co-parenting and post-divorce relationships.

DISADVANTAGES OF COLLABORATIVE DIVORCE PROCESS

Can be Expensive:

While an uncontested divorce is widely seen as the most expensive option when a couple goes through a divorce, a collaborative divorce can be expensive as well. In addition to each party paying for an attorney to represent him or her in the collaborative process, parties will often be expected to retain other professionals as well, including mental health professionals and financial specialists.

Not Suitable for all Matters:

Collaborative divorce is generally not suitable in cases involving power imbalances between the parties or where there is a history of physical, mental or emotional abuse. Additionally, collaborative divorce may not be appropriate in cases where there are complex financial issues, such as the valuation of business interests.

Challenges to Agreement:

In order for a collaborative divorce to be successful, both parties must be willing to negotiate to reach a mutually beneficial agreement. If one or both of the parties are uncooperative during the collaborative divorce process, then the process can become drawn out, which leads to more aggravation and increased costs.

Withdrawal from Collaborative Divorce Process:

If one or both parties decides to terminate the collaborative divorce process and pursue litigation, then often the attorneys involved in the collaborative process are unable to represent the parties in the litigation process. Therefore, both parties need to retain new attorneys.

CONTESTED OR LITIGATED DIVORCE

In New York State, a contested divorce refers to a divorce case where the parties are unable to agree on one or more issues involved in their divorce, including equitable distribution (i.e. division of assets and debts), maintenance, child custody and visitation or child support. In this situation, one of the parties commences a court proceeding before an issue or issues is resolved. The issues will ultimately be resolved through further negotiation and the assistance of the courts.

The thought of having to go through a contested divorce can be frightening, especially to those who have little or no experience with the court system. An experienced matrimonial attorney can advise you through this process.

METHODS TO APPROACH AND RESOLVE A DIVORCE ACTION

Matrimonial cases, often referred to as divorce cases, can be handled using one method or a combination of methods. The most common methods are: (1) Uncontested Divorce, (2) Alternative Dispute Resolution or (3) Contested Divorce. It is important that you speak with an experienced matrimonial attorney to determine the approach that is beSt for you. This section discusses the three most common approaches to resolving a divorce action.

 UNCONTESTED DIVORCE:

In New York State, an uncontested divorce is when the parties are able to agree on all key issues that affect their divorce. These may include (I) economic issues of equitable distribution of marital property, (2) the payment or waiver of spousal support, (3) the payment of child support, (4) the payment.of counsel and experts' fees and expenses and (5) custody and visitation of the children of the marriage.

 

        An uncontested divorce in New York is generally the quickest and most cost-effective way to obtain a divorce. If you and your spouse are able to agree on the issues involved in your divorce, then typically one spouse will retain an attorney for the purposes of drafting a formal agreement that memorializes the terms agreed upon by the parties.
   An attorney or attorneys may also be retained in an uncontested divorce to help the parties negotiate and resolve issues that the parties cannot agree upon between themselves prior to commencing an action for divorce.

 

While it is recommended that both parties retain their own attorneys to negotiate, draft and/or review the written agreement, it is not necessary. It is important to note that in New York State, one attorney cannot represent both parties. If both parties want representation, they will each need to retain their own and separate attorney.

 

After the agreement is drafted and reviewed by the parties and/or their attorneys, then a divorce action is commenced. Additional documents will need to be prepared and signed by both parties, however, the terms of your agreement will be incorporated into the Judgment of Divorce. Typically the parties do not need to appear in court for an uncontested divorce.

ALTERNATIVE DISPUTE RESOLUTION

Two common methods of Alternative Dispute Resolution (“ADR”) that are used in divorce cases are mediation and collaboration. Parties choose a method of ADR when they are willing to negotiate and they desire to reach a mutual agreement outside of court. ADR can be less costly than proceeding to a contested divorce, however, that is not always the case.

Alternative Dispute Resolution is not suitable for all cases. If both parties are not vested in negotiating outside of court, then ADR will prove to be merely an exercise in futility and a waste of time and money. Further, ADR is not appropriate in cases where there is a history of domestic violence. You should consult with an attorney to decide if ADR is a good option for-your specific situation. The two most common forms of ADR in New York divorce cases are:

(1) Mediation and

(2) Collaborative Divorce.

MEDIATION

Mediation is where a neutral third party, who is a trained mediator, helps assists the parties in reaching a mutually acceptable agreement. The role of a mediator is to facilitate communication and negotiation between the parties, striving to assist them in reaching a resolution to their divorce issues without the need of judicial intervention.

Each mediator has their own way of conducting the mediation process, but their goal is the same, which is to assist a couple in reaching an agreement. During the mediation process, the mediator will typically meet with both spouses together and sometimes separately.

The mediator will help identify the issues in dispute, clarify each party’s interests and concerns and promote a cooperative environment for furthering a settlement. A mediator should not make decisions for either or both spouses, but rather assist them in reaching their own solutions to the unresolved issues.

If the parties have been able to reach an agreement on most issues, but not all, then mediation may be helpful for limited issues as well. For example,

if the parties have children, and they have agreed upon everything except for a parenting schedule for the minor children, then a mediator may be retained by the parties to resolve that one outstanding issue.

Typically, if an agreement is reached through mediation, the mediator will prepare a Memorandum of Understanding (“MOU”), which will be provided to the parties. The MOU will outline the terms of the agreement reached between the parties.

Once an MOU has been received by the parties, one or both parties will retain an attorney to review the MOU and draft a formal written agreement for the parties to sign and subsequently incorporate into the eventual Judgment of Divorce.

As with any decision in life, there are advantages and disadvantages of using mediation. Some of the advantages and disadvantages of mediation are:

WHAT TO EXPECT IN A CONTESTED DIVORCE

Each divorce case is different and the approach taken, even within the context of a contested divorce, will vary from each case. As repeated throughout this guide, it is always important to retain an experienced matrimonial and family law attorney to advise you through this process. Negotiation and search for resolution will continue throughout the contested

divorce process. Just because you or your spouse is seeking a contested divorce does not mean that negotiations are over and you have to go to trial before a judge. While trial is always an option, a high percentage of contested divorce cases are eventually resolved through agreement.

Below is a general outline for the course of action that a person can expect in a contested divorce action.

  • File a Petition: To commence an action for divorce, the party seeking the divorce files an Application for Index Number and a Petition, also referred to as a Pleading, with the office of the county clerk. In New York State, the pleading that must be filed to commence a divorce action is called a Summons with Notice. Commonly, a Verified Complaint will also be filed with the Summons, but it is not required. The date that the Summons with Notice is filed is referred to as “the date of commencement.” This date, “date of commencement,” will be referenced throughout the divorce process.

The spouse who commences the divorce action is referred to as the Plaintiff The other spouse is referred to as the Defendant. Generally, it does not matter which party starts the divorce action, however, there are situations where it can be important. You should discuss this with an experienced matrimonial attorney.

 Petition Served on Spouse:

After the petition has been filed, it is necessary to serve it upon the Defendant. In New York State, the Plaintiff has one hundred twenty (120) days to serve the Defendant, however, most individuals seek to have their spouse served as soon as possible to avoid delay. Service can be accomplished in a number of ways. If the Defendant is known to be represented by an attorney, often times the attorney representing the Defendant will agree to meet with the Defendant and serve him or her with the pleadings. If the Plaintiff does not have knowledge that the Defendant has retained an attorney, then, often times, a process server is hired to serve the Defendant.

In certain instances a party does not know where their spouse is living, and they have not had communication with him or her in months or years. If this is the case, there are other methods provided by the court to serve the Defendant, however, they are rather complicated and it is advisable that you retain an experienced matrimonial attorney to assist you in this process.

Answer the Petition:

Once the Defendant has been served, they have limited time to file an Answer to the Petition, generally twenty (20) or thirty (30) days depending on the method by which they were served. Often times, the Defendant will file a cross-petition, referred to in New York State as a “Counterclaim.” As a general rule, it is in a Defendant’s best interest to file a counterclaim at the same time that the Answer is filed.

Request Judicial Intervention:

A Request for Judicial Intervention (“RJI”) is typically filed by the Plaintiffs attorney shortly after an Answer has been received. The RJI is a form document that needs to be completed and filed with the county clerk’s office. This form essentially requests a judge to be assigned to your matrimonial case. After the RJI is filed, your