Nobody gets married believing that one day it will end in divorce. But if the termination of your marriage is looming, it’s time to get serious about your legal rights. You will need assistance not only with the divorce itself but with related matters such as child custody and property division. With the right legal team by your side, you can proceed with the confidence you need to turn the page and complete the process. Find out why so many Hicksville clients trust Aiello & DiFalco LLP to represent them.
Basic Requirements for a New York Divorce
Before you or your spouse decides to initiate divorce, two basic criteria must be met. They are:
Residency
New York imposes residency requirements that can be satisfied in a few different ways:
- Two-year residency: Either you or your spouse may meet the requirement by living in New York State continuously and for at least two years before papers are filed.
- One-year residency: The above two-year requirement can be dropped to one year if you and your spouse were married in New York, the two of you lived in New York as a married couple, or the grounds for the divorce occurred in New York.
- Both are residents: If both spouses live in New York when the divorce started and the grounds for the divorce happened in New York, they have met the residency requirement.
Grounds
A spouse may allege one of the following seven grounds for a divorce in New York:
- Irretrievable breakdown of the marriage: Also known as a no-fault divorce, the marriage must be over for at least 6 months and all issues related to the marriage (like the ones listed below) must be resolved.
- Cruel and inhuman treatment: A spouse must prove the occurrence of specific acts of cruelty over the previous five years, something more substantial than an argument, disagreement, or failure to get along. The complaining spouse (plaintiff) must demonstrate that such treatment placed them in physical or mental danger and that it would be improper or unsafe to continue residing with the defendant spouse.
- Abandonment: If one spouse abandoned the other for at least a year, they may use this ground for divorce. There is both physical abandonment (leaving the marital residence without intent to return home) and constructive abandonment (refusal to have sex).
- Imprisonment: A spouse must be in prison for at least three years in a row and the spouse must have been incarcerated after the marriage began. This ground may be used while the spouse is in prison or up to five years after the spouse’s release from prison.
- Adultery: One spouse must show that the other spouse engaged in adultery during the marriage. Third-party evidence from someone other than the spouses is needed to prove this ground.
- Divorce following a legal separation agreement: The spouses must sign and file a separation agreement and live separately from each other for a year to use this ground. There are specific legal requirements for the separation agreement to be valid.
- Divorce following judgment of separation: This is a rarely used ground in which the New York Supreme Court draws up a judgment of separation and the spouses live apart for one year. It is also known as a conversion.
Other Issues to Resolve
A divorce is more than the end of a marriage. You must also agree to or have the court resolve the following matters:
- Child custody: Custody concerns how the child will split time between the parents and how major decisions affecting the child will be made.
- Child support: The amount of money that the non-custodial parent must pay the custodial parent for the child’s well-being is usually determined by a calculator.
- Spousal support (alimony): The court may grant either temporary or post-divorce support to a spouse who has demonstrated financial need.
- Property and debt division: You and your spouse must divide your marital assets and debts in a fair, equitable (but not necessarily equal) manner.
Uncontested Versus Contested Divorces
New York divorces fall broadly into one of two categories:
Uncontested
An uncontested divorce is one in which the spouses agree with all major issues arising out of the marriage. This includes all of the items listed below. A separation agreement typically memorializes the agreement. The judge will review the terms of the agreement and, if they seem fair, will sign an order that makes them valid and enforceable. Uncontested divorces are relatively straightforward and less expensive and time-consuming.
Contested
If the parties cannot agree on the issues arising out of the marriage, then they will pursue a contested divorce. A spouse may not agree with the stated grounds for the divorce or may disagree with the terms of child custody, property division, or other matters. These divorces tend to be more complicated and require more time and money.
The Basic Steps to File for Divorce
What follows is a general outline of the steps to obtain a divorce. There are more detailed requirements that can be handled by an attorney, but the basics are:
- File the paperwork and pay the fees: The plaintiff spouse will file a complaint alleging the grounds for divorce along with a summons to be served on the defendant spouse. The plaintiff pays the fee (currently $210) and obtains an index number for the case.
- Serve the defendant: The defendant must be personally served with the court papers by an adult who is not the plaintiff. An affidavit of service is then filed to prove that service was accomplished.
- Await the defendant’s response: The defendant will need to respond with either an answer (which changes an uncontested divorce to contested) or an affidavit of defendant which essentially agrees to the divorce. If the defendant fails to answer, they are said to have defaulted; regardless, the divorce moves to the next step.
- Calendar the divorce: This means taking the proper steps to place the divorce on the court’s docket so it can issue an appropriate judgment in the matter. A fee is also required for this step.
- Judgment: Finally, the court will memorialize its final order ending the marriage and resolving the above-stated issues in a judgment of divorce.
How Our Attorneys Can Help
Having experienced legal counsel is essential to protecting your interests throughout the divorce. Aiello & DiFalco LLP can assist with your divorce by:
- Applying our extensive knowledge of New York family laws, court procedures, and other rules
- Filing, serving, and responding to all court paperwork
- Representing you in all communications with the court, your spouse, and your spouse’s attorney
- Helping you decide whether to pursue an uncontested or contested divorce
- Handling all family law issues related to the divorce
- Negotiating with your spouse’s attorney for the best possible outcome of your divorce
- Attending mediation with you and attempting to reach an out-of-court settlement that can save you time, money, and stress
- If necessary, litigating all aspects of your divorce in court
Contact Our Hicksville Divorce Attorney
We understand what’s at stake in your divorce and that the result of your legal matter will affect you, your family, and your finances for potentially years to come. That’s why when you retain us, we will get to work immediately to develop a legal strategy that fits your needs and circumstances. Whether you are ready to initiate your divorce or your spouse has served you with court papers, give Aiello & DiFalco LLP a call today.
Aiello & DiFalco LLP serves clients in Garden City, Hicksville, Long Beach, Massapequa, Nassau County, Suffolk County, Long Island, Queens, Brooklyn, and New York City.