Frequently Asked Questions About Divorce in New York
1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.