About NY Divorce Law

WHAT IS A DIVORCE?
Every divorce case is technically 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 in New York also apply to a divorce case. There are also special rules for divorce cases, including mandatory disclosure of financial matters, "Automatic Orders" preventing either spouse from changing insurance or removing money from the marital pot, and a 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 (an "uncontested divorce"), 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 is every divorce case which has at least one unresolved issue, such as how to take care of children, child support, or division of property.  Uncontested divorces often require 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. Eventually, if there is no resolution to the issues, the court will hold a trial and make a decision for the parties.

Contested divorces can take years to resolve and can be very, very expensive. They 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.