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Divorce & Separation

The Guide To Divorce and Family Law In New York was written to help you understand how New York Courts work. It is not intended to be legal advice or a substitute for a divorce lawyer, merely a guide to help you understand your needs.

We recommend that you retain the services of a competent New York Divorce Lawyer to defend you and your children. Call a New York divorce attorney at (646) 350-0601.

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What's The Difference Between A Contested Divorce and An Uncontested Divorce?

A divorce is uncontested if you have no disputes with your spouse. That means that you have resolved the grounds for your divorce, custody and visitation of your children, spousal and child support, any other financial issues, property, etc.

A contested divorce involves a dispute over children, money, property, grounds for divorce or anything else.

Does New York Allow No-Fault Divorce?

No, New York State does not have no-fault divorce. Usually people put down abandonment or constructive abandonment as a reason for divorce when no party wants to take the blame.

What Are The Grounds For Divorce In New York?

(1) Cruel and inhuman treatment: Plaintiff's conduct is such that it endangers the defendant's physical or mental well being and makes it unsafe or improper for the plaintiff to cohabit with the defendant.

(2) Abandonment or Constructive Abandonment for at least one year. Constructive abandonment may involve the parties living in the same household, but no longer acting as husband and wife.

(3) confinement of the defendant in prison for at least 3 consecutive years.

(4) Adultery: sexual intercourse, oral sexual conduct or anal sexual conduct, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of plaintiff and defendant.

(5) Separation pursuant to a decreet or judgment for at least 1 year. Satisfactory proof has to be submitted by the plaintiff that he or she has substantially performed all the terms and conditions of the decree or judgment.

(6) Written Agreement of Separation: The agreement shall be filed in the office of the county clerk. In lieu of filing such agreement, either party can file a memorandum of such agreement, which must be subscribed and acknowledged or proved as was the agreement of separation and must contain the following: (a) the parties' names and addresses; (b) the date of marriage, (c) the date of the separation agreement; and (d) the date of the subscription and acknowledgment or proof of the agreement of separation.

Why Isn't My Divorce In Family Court?

Divorces are not granted by the Family Court. Instead, it is resolved by the Matrimonial Part of the New York Supreme Court. Any connected issues, such as child custody and order of protection, may be resolved in the NY Supreme Court so long as it is done as part of divorce proceedings. If you've already received a divorce or were never married, then child custody, child visitation, child support, order of protection and other related issues must be resolved in the Family Court. You can also get an order of protection in Criminal Court.

How Do I Obtain An Uncontested Divorce?

Purchase an index number which will be the case number for your divorce. The fee is $210. Then file a summons and verified complaint in court, and serve (aka deliver) a copy on your spouse. The person serving/delivering the papers must be over 18 and a New York resident. Service should not take place on Sunday or holidays. After he/she serves the summons and complaint, they must sign an affidavit of service swearing that they have completed service of the documents. Affidavit of service usually describes the person upon whom the papers were served.

In an uncontested divorce, your spouse will have to sign and notraize a waiver. You must then purchase a note of issue for $125 and submit to court the waiver, summons, complaint, affidavit of service, proposed judgment of divorce, findings of facts and conclusions of law, as well as a child support worksheet if there are children.

Your divorce should be signed by the judge within about 6-8 weeks, though some cases differ. After you've obtained a certified judgment of divorced and served a copy of it on your spouse, you are officially divorce.

How Do I Obtain A Contested Divorce?

Everyone is entitled to represent themselves. However, you must remember that contested divorces are usually very complicated. Without proper legal representation, you may wind up being faulted for something you haven't done; your case may be unnecessarily delayed preventing you from getting re-married; you may lose your children, child support or spousal support, or the right to even visit your children; you may not obtain an order of protection against a violent ex-spouse or may have have an order of protection issued against you. These are just some of the negative consequences that may result if you do not have a competent divorce lawyer. We strongly recommend that you contact a New York Divorce Lawyer to defend your rights and your children's interests by calling (646) 350-0601.

What happens to our property?

The property accumulated in the course of marriage, including housing, vehicles, bank accounts and much more is subject to division in accordance with the principle of equitable distribution under New York Divorce Law if it is classified as marital property. If property is classified as separate property because a person brought it into the marriage and did not intermingle it with marital property, then the property is not subject to equitable distribution.

Intangibles accumulated during the marriage are also potentially subject to equitable distribution. Intangibles include professional and academic degrees, stock options, pension plan, etc. Businesses and professional practices are also subject to equitable distribution.

What's Equitable Distribution?

Equitable Distribution is a manner by which property is divided between the two former spouses during the divorce. New York Divorce Law regards marriage as an equal partnership with both parties having the right to the "fruits of the marriage". This does not mean that each party gets 50%. The court tries to be fair in dividing marital property and considers many factors, including:

  • Income of each party at time of marriage;
  • Income of each party at time of commencement of action;
  • Property of each party at time of marriage;
  • Property of each party at time of commencement of action;
  • Duration of marriage;
  • Age of both parties;
  • Health of both parties;
  • Need of custodial parent to occupy or own marital residence;
  • Need of custodial parent to use or own household effects;
  • Loss of inheritance rights upon dissolution as of date of dissolution;
  • Loss of pension rights upon dissolution as of date of dissolution;
  • Any award of maintenance;
  • Equitable claims to or interest in or direct or indirect contribution to the acquisition of the marital property by the party not having title, including: (a) Joint efforts;
    (b) Expenditures;
    (c) Contributions as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party;
  • Liquid or non-liquid character of all marital property;
  • Probable future financial circumstances of each party;
  • Impossibility or difficulty of evaluating any asset or interest in a business, corporation or profession;
  • The desirability of retaining the asset, or interest in the business, corporation or profession free from any claim or interference by the other party;
  • The tax consequences to each party;
  • The wasteful dissipation of assets by either spouse;
  • Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; and
  • Any other factor which the Court shall expressly find to be just and proper.

What Is Considered Marital Property?

DRL 236B(1)(c) defines Marital Property as the following:

"The term 'marital property' shall mean all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a marital action, regardless of the form in which title is held..."

Courts have generally interpreted the term "marital property" broadly, preferring to err on the side of marital property rather than separate property.

What Is Considered Separate Property?

Separate Property, as defined by DRL 236B(1)(d), includes:

  1. Premarital property;
  2. Property acquired in exchange for the increase in value of separate property, unless the increase in value can be attributed in part to the efforts or contributions of the other spouse;
  3. Property classified as separate property in the prenuptial agreement;
  4. Compensation for personal injury;
  5. Inheritance and gifts so long they were left to one of the spouses, not both together.

Marital Property v. Separate Property?

Courts consider several factors when deciding if something is marital property or separate property. Some of the factors are:

1. Length of marriage: Courts favor a determination of "marital property" in longer marriages.

2. Intermingling of assets: Even if the assets were originally separate property, they may become marital property so long as they were intermingled.

3. Can the assets be traced: If so, then separate property should remain such.

4. Active Appreciation: Significantly improved assets may lose their status as separate property and become marital property if the appreciation is due to the efforts of the spouses prior to the divorce. If the value of an asset increased simply through the passage of time, or by any means outside of the spouses' control and the gains can't be attributed to the spouses' effects, then it usually remains separate property. The Court does draw a distinction between these two situations:

  • When a separate asset increases in value due to the efforts of one of the spouses, at least in part, this is called Active Appreciation, and results in the creation of Marital Property.

    What If The Property Is In My Name Only?

    Any property acquired during marriage is presumed to be marital property unless you can prove otherwise. The mere fact that it is in your name does not mean that it's your separate property.

    What If I purchased the property after we got separated, but before a final judgment of divorce?

    It will be presumed to be marital property unless you can prove otherwise if it was acquired at any time before the commencement of a divorce action.

    Should I get a prenup before marriage?

    While every relationship is different, it is strongly recommended that people consider entering into a prenuptial agreement prior to their marriage to avoid costly divorce fights that can last for years and can cost tens of thousands of dollars. The Storobin Law Firm can prepare a prenup agreement for you for only $699. To learn more about prenups, visit the Guide's prenuptial agreement page. Call to consult a divorce lawyer at (646) 350-0601.

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    New York, N.Y. 10007
    Phone: (646) 350-0601
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    The Storobin Law Firm
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    Brooklyn, N.Y. 11201
    Phone: (718) 285-6978
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    The Storobin Law Firm
    104-70 Queens Blvd., Suite 300
    Brooklyn, N.Y. 11375
    Phone: (718) 285-6978
    Fax: (646) 517-0253