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Divorce
- Getting Started |
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Divorce
can be one of the
biggest steps in the
process or regaining
control over your
own life.
The process of
divorce can also be
very confusing.
While people, in
most instances, are
free to enter into
marriage, in
New York only the
Supreme Court can
terminate a
marriage. Because
divorce laws are
different in each
state, it is
important to work
with an attorney to
protect your
rights.
Grounds for Divorce
In order to obtain a divorce in New
York State, an individual must have "grounds". New York
is NOT a "no fault" divorce state therefore,
incompatibility or irreconcilable differences are not
justifications for divorce.
Grounds for divorce in New York include the following:
1. Cruel & inhuman treatment.
2. Abandonment for one year or more.
3. Constructive abandonment (lack of marital relations)
for one year or more.
4. Imprisonment for three years or more.
5. Adultery.
6. Living separate and
apart pursuant to a separation agreement for one or
more years.
An Attorney can
help you develop well constructed grounds for divorce.
General Process and Divorce Terminology
While the process of
divorce can vary greatly depending on numerous
circumstances, every divorce is started by filing a
summons in the county clerk's office and paying a filing
fee. The spouse filing the divorce is known as the
plaintiff, and the non-filing spouse is know as the
defendant. This document sets out what the
grounds are and what relief the plaintiff wants. The
plaintiff must serve the summons on the defendant
spouse. Thereafter, the defendant is given time to make
a written reply to contest these issues if he or she
desires.
If both parties agree
on the terms the case is "uncontested". If both
parties do not agree, the divorce is "contested".
With a contested divorce, it is essential to involve an
attorney to help you prepare for trial. Failing to file
the proper paperwork or improperly drafting a pleading
can result in the Judge dismissing the divorce
action.
In between the
initial pleadings and the trial there are a series of
intermediate steps, each requiring additional pleadings
and paperwork. The primary tools a lawyer uses are
pre-trial motions and discovery. Your attorney file
motions to help obtain temporary orders for support,
custody, and visitation as well as exclusive use and
occupancy of the marital residence and spousal
maintenance. An attorney can use formal discovery
to get documents and information under oath.
The preliminary
conference sets up a timeline for the divorce,
identifies what issues are on hand, and sets up the
dates for the exchange of information. Among the
documents the parties will need to exchange are net
worth statements, appraisals of real estate,
interrogatories, depositions, and other document
requests. If children are involved, the court will also
determine whether the children need independent
representation, and if so, appoint a "law guardian"
to represent the children's best interests. The
compliance conference is another meeting to make sure
that both sides have all the necessary information
necessary to go to trial. Once both sides are ready for
trial, the court will direct the plaintiff to file a
Note of Issue and a Certificate of Readiness. Often
there are pre-trial conferences held to see if any
issues can be resolved before the actual trial. After
the trial, the Court will issue a decision.
How Long
Will It Take
The most common
question involving divorce is "how long will it take".
We understand that many couples want to move on and
start a new chapter of their lives. A simple uncontested
divorce may be processed by the Court within 90 days,
depending on the Court's schedule. A complex contested
divorce action, involving contested custody, valuation
and property issues can take from one to three years and
sometimes longer. It is important to work with an
attorney you are comfortable with and understands your
issues.
Privacy
All original
documents are located in the County clerk's office, but
divorce files are not public record. The privacy
accorded matrimonial matters is a recognition of the
inherently personal nature of these proceedings. The law
prohibits the clerk of the court and the court reporter
from allowing anyone, other than a party, or the
attorney or counsel of a party, except by order of the
court, to examine or copy of any of the pleadings,
affidavits, findings of fact, conclusions of law,
judgment of dissolution, written agreement of separation
or memorandum, or testimony.
Residency Requirements
In New York State,
an action for divorce may be maintained only when one of
the following residency requirements are met::
- The husband
and wife were married in New York, and either party
is a resident of New York for at least one year
prior to the initial filing for divorce.
- The parties
have resided in New York as husband and wife, and
either of them is a resident of New York for at
least one year prior to filling.
- The grounds
for divorce occurred in
New
York, and either party has been a
resident of
New York
for at least one year prior to filing.
- The grounds
for divorce occurred in
New
York, and both parties are residents of
New York at the time of filing.
- Either spouse
has been a resident of
New York for at least two years prior to filling.
Filing Your Own Divorce
Yes, you can file
for divorce without an attorney. However, too many
people think that doing their own divorce means filling
out some forms or purchasing a "do it yourself kit".
Legally, you may represent yourself, but because the law
is so complex, it is very risky. Friends and family
will attempt to help by giving you lots of "free" advice
but it is best to leave legal matters to a professional.
Friends and family are great for comfort and support but
everyone's situation is different and it is important
that you are legally protected and that you don't cause
yourself harm. Only in circumstances where you and your
spouse are in agreement on all terms, your assets
are simple, you are satisfied that your spouse has
disclosed all of his or her assets and income, and you
believe that the settlement is fair, should you even
consider doing your own divorce. Each State has
different laws and procedures when it comes to divorce
so in New York it is generally not advised to purchase a
generic book or kit.
If
you still prefer to fill out and file the court forms
and documents yourself, our attorneys can provide you
with the necessary legal advice and counsel. Consulting
with an attorney will help clarify and answer questions
about New York's legal requirements. This way you do not
need to worry and wonder if the documents you have
prepared will be legally binding.
There are many situations
that a "do it yourself" divorce should never be
considered:
- You or your children are in
danger or have been harmed.
- The division of marital assists
and debts are unequal.
- Complicated assets including
joint accounts, joint ownership, debt, pensions
plans or insurance benefits.
- One or or both spouses are
self-employed, own a business, not self-supporting,
or large income difference .
- You can not agree on important
issues.
- You spouse is not
cooperating or does not want a divorce.
- You can not
agree on parenting arrangements.
- You or your
children have special needs or health issues.
-
You don't have time or don't understand the complicated
legal paperwork.
Already Filed Paperwork
If you have already filed for divorce or do not know the
next step, our Attorneys can help. Filing the paperwork
is not an end-all to the problems or the marriage. In
fact, often it is just the first step. An Attorney can
help draft a clear, unambiguous and legally correct
marital settlement or review one you have made yourself.
Because the language used in legal paperwork can be
technically challenging, it is often best to get help.
Without the proper planning and execution, a divorce can
easily become a nightmare. If your spouse is contesting
the divorce, it is even more important to involve a
knowledgeable and experienced and attorney to guide you
through the process.
How to get the most out of an Attorney while
controlling costs.
No one ever looks forward to the pain and expense of a
Divorce or the search for an Attorney to help. The costs
of a divorce can vary greatly. However, there are
several ways to best utilize your attorney during a
divorce and keep your costs down.
You can help the
process by being well prepared and organized. Keep a
file for all notes, letters, and important documents.
Some of the
documents you will want to gather include:
- Full contact information for both spouses (address,
phone number, social security numbers).
- Names, ages and addresses of the children of the
marriage.
- Information about any prior marriage of either spouse.
- Any domestic contracts such as a prenuptial or
postnuptial agreement.
- Information about any prior court proceedings
involving you, a spouse or the children (including
judgments, decisions, orders).
- Dates and details about about any separations,
attempts at reconciliation, or marriage counseling.
Know your facts,
write down any questions you would like answered, and
know the agenda of topics of discussion. Schedule
sufficient time for meetings or calls, free of
interruptions and distractions. Arrive on time in
presentable dress and do not use any substances that
impairs thinking such as drugs or alcohol. Be prepared
to answer questions and make decisions for yourself.
Consider your needs and state the issues in a
constructive way. Divorces and negotiating takes time so
be patient and persistent.
Our attorneys will
help you through this difficult time, help you
understand the issues in your case, help solve problems
and help negotiate a proper settlement.
Give us a call
at
(518)
DIVORCE
or
email
518divorce@tullylegal.com.
We are here to help. |
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Tully, Rinckey & Associates, PLLC
Attorneys & Counselors at Law
ALBANY OFFICE
-
441 NEW KARNER ROAD
- ALBANY NY,
12205 - PHONE:
518-218-7100
- FAX:
518-218-0496
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