About NY Divorce Law

WHAT IS A DIVORCE?
A divorce is an adversarial, legal proceeding where one spouse (the "Plaintiff") files a lawsuit in the Supreme Court against the other spouse (the "Defendant") asking for a dissolution of the marriage, together with related relief. The lawsuit officially begins on the date the Plaintiff files a "Summons" with the Clerk of the Supreme Court. The procedural rules that govern all court proceedings apply to a divorce case. The court also has special rules for divorce cases, including mandatory disclosure of financial matters, and the requirement that both lawyers and both clients personally to go to court every time the case appears on the calendar. 

After a Summons is served on the Defendant, the Defendant has a limited time within which to file papers which either allows the divorce to proceed without opposition, or which places the divorce on a contested track. If the Defendant fails to file any papers, a divorce may be granted on default. 

WHAT IS A CONTESTED DIVORCE?
A contested divorce often requires numerous court appearances, written motions, extensive proceedings to obtain financial records, and experts appointed by the court or hired by the lawyers to value marital assets, untangle the finances, or make recommendations regarding parenting issues. If the parties are unable to agree about how to resolve the issues, the court will hold a trial either before a judge or a referee. A contested divorce can take years to resolve and can be very, very expensive. It can also be very personal, embarrassing and ugly, with your partner using things against you that you might never have thought possible.

How Social Media Can Affect a Divorce

Specific Legal Issues in Divorce Cases: 
Residency Requirement: In order to file a divorce case in New York, you must be legally married and you (or your spouse) must live in New York at the time the divorce case is filed. NY residency must be continuous for at least one year, and in some cases two years, before the Summons is filed. Generally, the case should be filed in the county where either you or your spouse resides. 

Personal Service of Summons: A Summons in a divorce case must be personally delivered ("served") upon the Defendant unless the court has made a specific order allowing service by some other means.

Grounds for Divorce: If one spouse states that the marriage is irretrievably broken and has been broken for more than six months, grounds have been proven and a divorce will eventually be granted once the other issues have been resolved. Other grounds for divorce still exist, but there is little advantage to proceeding on a different, "fault" ground because doing so usually just makes it more difficult to reach a resolution of the case and because a judge is not permitted to consider who is at fault in awarding the other relief, except in very narrow circumstances. 
The other legal grounds are:

• Cruel and inhuman treatment
• Abandonment or constructive abandonment for a period of more than one year 
• Three consecutive years of imprisonment
• Adultery
• Living separately for more then one year after a legal separation (a legal separation occurs when a court order is entered in an action for separation, or on the date both spouses signed a written separation agreement)

Other issues in a divorce proceeding: Either spouse has the right to ask the court to grant many kinds of other ("ancillary") relief in a divorce action. Often one or the other spouse will ask for a temporary order ("pendente lite") resolving some of these issues pending a trial.  If the case goes to trial, a court will make a final order determining all of the ancillary issues and this order will become part of the final judgment of divorce. A judgment of divorce will not be granted unless and until all of the relevant ancillary issues have been resolved, either by agreement, by waiver, or by an order of the court. 

Ancillary issues:

• Parenting arrangements ("Custody") for children under the age of 18. A court will not sign a judgment of divorce unless it resolves how children of the marriage will be cared for ("custody").  MORE about parenting. 
• Equitable Distribution of Property. In a divorce, both spouses are entitled to an equitable portion of the marital property and the marital debt. If neither spouse asks for equitable distribution, the issue will be waived and after a divorce, the property held by each spouse in his or her own name will remain the separate property of the titled party. MORE about Equitable Distribution.
• Spousal Maintenance (also known as alimony). Maintenance may be an issue if one spouse is financially dependent upon the other. Like equitable distribution, it is an issue that may be waived unless the person who needs it asks for it before a final judgment of divorce is signed. MORE about Spousal Maintenance.
• Child Support. New York law provides that the "custodial" parent receives child support from the "non-custodial" parent. Parents are free to agree upon an amount and manner of child support that differs from how the law defines it, but any agreement about child support must include language showing that the parents actually calculated child support in accordance with the statute and then decided to agree otherwise. MORE about Child Support.
• Expenses of representation in the divorce proceeding. The law presumes that the spouse who earns less income than the other has the right to have the higher earning spouse pay his or her counsel fees and expert fees for maintaining the divorce action. This is a presumption that can be rebutted or waived.  
• Other Relief. Other relief includes the right to request exclusive occupancy of a home, the right to resume use of a pre-marriage surname, health insurance, and life insurance.