Frequently Asked Questions About Divorce in New York
1. How Long will my divorce take?
A: With respect to how long the divorce will take, it is conditioned and solely dependent on the cooperation or lack of cooperation by their spouse and/or his or her attorney. Some people seek only settlement while others seek retribution. I then give them a ballpark response saying that "you should consider that you will be my client for approximately 6 months at the least". I tell them that I have settled cases in shorter periods of times but that is the exception not the rule. I then say it could go for one year; and then possibly longer but highly doubtful.
2. How much will my divorce cost me?
A: Regarding costs, I inform the prospective client that a retainer is required, against which I will bill at my standard hourly rate. I clarify that the retainer is not a flat fee and that the total cost will ultimately depend on the amount of time devoted to the matter. I also advise that additional fees may arise if the opposing party is particularly litigious or uncooperative. In accordance with the Rules of the Court, I provide clients with a detailed timesheet every 60 days—or sooner upon request—so they can track the time spent on their case. I make it clear that I strive to be a cost-effective attorney and limit my work to services that are necessary and appropriate for the circumstances.
3. What are the grounds for a divorce in the state of New York?
A: The grounds for divorce consists of irretrievable breakdown of the marriage for a period of six months, the existence of a separation agreement for a period of one year, cruel and inhuman treatment, adultery, abandonment for a period of one or more years, and the incarceration of a spouse pursuant to a felony conviction for a period of three years or more.
4. What are “no fault grounds”; and are they preferable to be used to obtain a divorce?
A: The “no fault grounds” consists of (a) the irretrievable breakdown of a marriage for a period of six months or more prior to the commencement of a divorce proceeding; and (b) the existence of a separation agreement for a period of one or more years in addition substantial complaints by the spouse seeking the divorce. They are more favorable because they are not accusatory, and therefore do not add fuel to the fire.
5. With respect to equitable distribution, does equitable mean equal?
A: Absolutely not. While in long term marriages the marital assets are generally equally divided, there are circumstances where it would be inequitable. Those circumstances consist of, among other things, a greater contribution by one spouse, etc.
6. What are the factors which go into a determination of an award of maintenance, a.k.a. alimony?
A: Primary factors consist of the length of the marriage, the financial circumstances of both parties, the pre-separation standard of living and the health of each spouse. The law further provides certain guidelines as to amount and duration, both of which are subject to the ultimate discretion of the Court.
7. In connection with the concept of equitable distribution, what is the difference between separate and marital property?
A: Marital assets consist of all assets of any kind acquired after the marriage and prior to the commencement of an action for divorce. Separate property consists of all property owned prior to the marriage; and in addition, assets acquired during the marriage pursuant to inheritance, gifts from third parties and recoveries from personal injury actions.
8. When will a Court of competent jurisdiction modify a Custody/Access Agreement incorporated into a Judgment of Divorce?
A: A Court will modify a Custody/Access Agreement if there has been a substantial change in the circumstances affecting the children; and that such modification would be in the best interest of the children.
9. Can a Court modify a provision of maintenance incorporated into a Judgment of Divorce; and what are the factors that a Court will utilize?
A: Yes. But the party seeking a modification must establish through competent evidence that there exists “extreme hardship” preventing the payor from complying with the underlying obligation; or in the alternative, that the payee has suffered a substantial change of circumstances constituting extreme hardship.
10. Can a Court modify a child support arrangement set forth in a Judgment of Divorce; and what factors will the Court utilize to make such a determination?
A: Yes. The moving party must establish a substantial intervening change of circumstances which warrants a modification either upwards or downwards. The relevant statute further provides for a modification of child support based upon (1) the passage of 3 years, or (2) a change in either parties’ income by 15%.
11. How long will it take to obtain a Judgment of Divorce; and what are the expenses in connection with such an endeavor?
A: The time to secure a Judgment of Divorce depends upon (a) the cooperation of both parties and their attorneys; (b) the nature of the issues i.e. whether they are complex or simple; and (c) whether or not experts must be retained to value the marital assets. The legal fees will be determined based upon the skills of the attorney, and the amount of time necessary to secure the Judgment of Divorce.
12. How is child support determined; and what are the factors in which the Court will utilize?
A: Child support is determined by several issues i.e. the financial circumstances of the parties, the unique needs of a child; and what the Court determines to be the child support income of each spouse. The law further provides for a formula and guidelines, subject to the ultimate discretion of the Court.
13. Will a subsequent bankruptcy affect the provisions in a Judgment of Divorce with respect to maintenance, child support, and equitable distribution?
A: Generally speaking most agreements which are incorporated into a Judgment of Divorce provide that the items of maintenance, child support and equitable distribution shall not be discharged in bankruptcy.
Contact our office in White Plains to learn more
For knowledgeable assistance with your divorce or family law matter, contact the skilled team at Martin J. Rosen, P.C. today. His White Plains office serves clients from Westchester, Rockland, Putnam, Orange, Dutchess and New York counties.
