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Tuesday, November 2, 2021

What are am I entitled to in a divorce in New York?

As a Brooklyn, New York City based divorce attorney clients often ask me what are they entitled to in a divorce. The answer depends upon what the respective incomes of both spouses are, whether there are marital assets and property and if there are children of the marriage. 

 

Your rights and entitlements in an Uncontested Divorce

 

A divorce can be resolved in two ways, via an uncontested or contested divorce. An uncontested divorce occurs when both spouses agree upon the terms of the divorce. This means that all issues involving maintenance, property, asset division and if there are children, custody and visitation, are resolved. 

 

A divorce is commenced by filing a Summons with Notice. Your spouse has to be served with this document and it’s statutorily required attachments within 120 days of the filing of the divorce. In a true uncontested divorce personal service is not needed because the Defendant will waive the right to personal service. Remember however that you merely handing the papers to your spouse does not count as service, as you are not allowed to serve your spouse. If you don’t believe your spouse is going to sign the divorce papers then you will need to have him served by a process server or a person 18 years or older that is a resident of this state. Once service is complete and Affidavit of Service must be filled out. Your spouse will have twenty days to put in a Notice of Appearance or an Answer if a Verified Complaint was served with the Summons with Notice, and if there is no response you can get your divorce on default.

 

To facilitate an uncontested divorce it is wise to have a discussion with your spouse before you give them the papers to make sure all of the issues surrounding the divorce are worked out. It is important that you and your spouse have a clear picture about what the other’s finances are, what was acquired during the marriage, and to be on the same page about who will get custody or will both parties share joint custody and what the child support is going to be. Also if one spouse needs help to support themselves by a more monied spouse a discussion about spousal maintenance needs to be had. This discussion can save thousands of dollars in legal fees. It is better to work it out amongst yourselves than to have a man or woman and a black road to decide it for you.

 

After all of the issues are worked out, both parties will need to submit affidavit stating their intentions to resolve the divorce. When there are more complex custody/visitation or property/asset issues involved, both parties should also sign a Stipulation of Settlement which more explicitly resolves the issues of the divorce. There are many other documents that need to be submitted in the Uncontested Divorce packet to obtain a divorce so it is wise to hire a New York uncontested divorce attorney to help you through the process.

 

It is also wise that before you talk to your spouse to speak to your legal counsel about what your rights and entitlements may be. It puts you in a better bargaining position if you are more informed.  You are entitled to full financial disclosure before you agree to anything. Your attorney will explain your rights and what you are entitled to  in your consultation.

 

Once you have the talk with your spouse, you will have a better idea of whether the divorce will be contested.

 

Your rights and what you are entitled to in a Contested Divorce

 

If you and your spouse can’t agree you may have a contested divorce and a Judge may have to decide you fate. Remember, even if a divorce is contested most divorces get settled before going to trial. This rest of this article presumes that your case will be decided by a Judge at trial and the factors that go into that decision. Most divorces get settled after there is a “discovery” process.

 

Your right to discovery in a Contested divorce

 

In contested divorce cases both sides are to provide full disclosure to the other spouse about their finances. This is called discovery. To begin preparing for trial, both sides engage in discovery. At a minimum both sides are to exchange Net Worth Statements and the most recent tax returns. In a contested divorce a preliminary conference order (PC Order) is completed which sets timelines for the exchange of documents regarding assets and property. The PC Order requires at a minimum the exchange of three years of tax returns, bank statements, credit card statements etc. The PC Order will  set timelines for documents to be served and answered. A request for specific documents is called a Notice to Produce. 

 

The PC Order will also set timelines for Interrogatories. Interrogatories is the formal process of exchanging information between the parties where a number of questions are asked under oath.

 

One method of discovery is a depositions. The PC Order will set timelines for depositions. A deposition occurs before a court reporter and a person will be asked questions under oath about their assets and liabilities.

 

The PC Order will also assign experts. Generally experts are needed to appraise the value of a home or a business.

 

These discovery mechanisms are used by a skilled divorce attorney to gain an advantage in a contested divorce proceeding. The can be used to prove marital waste, the real value of a business and perhaps justify something other than a 50/50 split of marital assets.

 

 

Your right to assert grounds for a divorce

 

You have the right to assert grounds in the divorce. Grounds for a divorce in New zYork State are as follows:

 

  1. irretrievable breakdown in relationship for a period of at least 6 months. This ground is used to resolve contested or uncontested divorces.  This ground can’t be contested by your spouse because New York is a no fault divorce state.
  2. cruel and inhuman treatment. Here the Court will look at the behavior of the other spouse over the past five years. You will need to allege specific acts of cruelty that have put your physical or emotional health in danger. A history of Orders of Protection is good proof for this type of divorce. This ground will most likely be contested by your spouse.
  3. abandonment. Here your spouse must have abandoned you for one year of more. This can occur in two ways, your spouse physically leaves the home without returning for this time period or your spouse refuses to have sex with you, called “Constructive Abandonment for a year.
  4. imprisonment.  Here your spouse must be in prison for three years in a row and he or she must have been put in prison after the marriage began.
  5. adultery. Here you will have to have evidence from someone else other than yourself that adultery occurred. 
  6. divorce after a legal separation agreement.  Here you and your spouse sign a separation agreement and must live apart for at least one year. 
  7. divorce after a judgment of separation. Here  the Supreme Court draws up a judgment of separation and the married couple live apart for one year. I have never seen this ground used in my twenty years as a New York divorce attorney.

 

Equitable Distribution

 

You have the right and entitlement to the Equitable Distribution of the marital assets during the divorce. This means any property or assets acquired during the marriage must be divided by the Court equitably or fairly. This does not mean there will be a 50/50 distribution of marital assets and property but it often works out this way. In order to determine an equitable split the Court must consider the following:

 

  • Each spouse’s income and property before the marriage and their income and property at the time of filing for divorce
  • the duration of the marriage
  • the age and health of both parties
  • whether the parent with custody needs to stay in the marital home to care for the children
  • pension, health insurance, and inheritance rights lost as a result of the divorce
  • whether spousal maintenance has been awarded
  • the wasteful dissipation of marital assets
  • the transfer or encumbrance of marital  property without fair consideration and a other factors the court may deem just and proper.

 

Property subject to equitable distribution

 

Marital property is all property acquired by either spouse during the marriage. This includes but is not limited to the income of each spouse earned during the marriage, property purchased during the marriage irregardless if one spouse’s name is not on the title (this can include a house or a car), each spouse’s retirement benefits or savings from the time of the marriage to the commencement of the divorce, and the appreciation of marital property during the marriage.

 

Exclusive Occupancy of the marital residence

 

You may have the right to temporary exclusive occupancy of the marital residence during the divorce proceedings if you can show that it would put your physical or emotional health in jeopardy if you continue to live with your spouse.

 

One way to get exclusive occupancy is to obtain a full stay away Order of Protection. Another is by filing an Order to Show Cause for pendente lite relief seeking temporary occupancy of the marital residence. You must allege facts that will convince the judge that the physical or emotion health of you or your children is in jeopardy if your spouse continues to stay with you.

 

At the completion of the divorce, the Court has the power to award exclusive occupancy of the marital residence to one party.  If you are awarded this, your spouse will have to leave the premises once the judgment of divorce is signed.

 

Spousal Maintenance

 

Once you file for divorce you have the right to file an Order to Show Cause for pendente lite relief seeking temporary maintenance if you and your spouse are separated. The more monied spouse may have an obligation to pay temporary maintenance and it is determined by using a statutory formula used by the Court. 

 

After your divorce is granted you may be awarded maintenance for a certain period of time or in very long term marriage the Court may award maintenance for life.

 

 In determining post divorce maintenance the Court must consider:

 

  • The income and property of each spouse, including each spouses' share of the marital property as divided by the court.
  • The length of the marriage. 
  • The age and health of the parties. 
  • The present and future earning capacity of both spouses. 
  • A spouses' need to incur training or education expenses. 
  • The existence and duration of a joint household before marriage or separate households before divorce. 
  • Acts by one spouse against the other that inhibit the other's earning capacity or ability to get a job. 
  • The ability of the party seeking maintenance to become self-supporting, and the time and training that will require. 
  • Whether the spouse seeking maintenance has reduced or lost lifetime earning capacity as a result of having forgone or delayed education, training, employment or career opportunities during the marriage. 
  • Where the children live.
  • Whether one spouse will have trouble finding work due to age or absence from the workforce.
  • Exceptional, additional expenses for the children. 
  • The tax consequences to each party. 
  • The equitable distribution of marital property.
  • The wasteful dissipation of marital property by either spouse. 
  • Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration. 
  • The loss, availability, and cost of health insurance.
  • Any other factor which the court expressly finds just and proper.

 

Custody

 

In a contested divorce the court will decide Custody and visitation. Custody is determined by assessing the best interests of the child. The factors to determine best interests of the child are:

 

  • Stability. The Court will decide what home is best to keep the child in. Generally, if a child has lived with one parent for some time, the court may not want to disrupt this arrangement.
  • Child care arrangements.
  • Primary Caretaker. The parent that has cared for the child the most prior to the divorce or separation may be given priority in a custody dispute.
  • Drugs and alcohol. If one parent misuses drugs or alcohol this can influence a custody decision.
  • Mental Health of the Parents. An untreated mental condition and the parent’s lack of insight of this condition will influence who gets custody.
  • Physical health of the parent. If a parent has a physical incapacity that prevents them from properly caring for the child this can influence a custody decision.
  • Spousal abuse. Domestic violence situations have a very significant  impact on a custody determination.
  • Abuse, Neglect, and Abandonment.
  • Interference with visitation rights. A parent can lose custody if the willfully interfere with the visitation rights of the other parent.  
  • Child’s preference. Depending on the age of the child the Court my take the child’s preference into consideration.
  • Finances of each parent.
  • Conditions in the home environment.
  • Educational opportunities.
  • Where the child’s siblings live. 
  • Court’s observations of the parents.

 

Visitation

 

Each parent has the right of access to their child. It is in the best interest of the child for there to be visitation with the non custodial parent. Visitation must be frequent and regular so the non custodial parent can develop a meaningful relationship with the child. 

 

The custodial parent has an obligation not to interfere with the visitation rights of the non custodial parent and to encourage a meaningful relationship. A custodial parent that interferes with the non custodial parent’s visitation rights can lose custody.

 

Only under exceptional circumstances should parenting time not be awarded.  These are circumstances where it would be harmful for the child to have visitation with the parent or the non custodial parent forfeited their right to visitation by not being in the child’s life for an extended period of time. 

 

The child’s wishes can also influence the Court’s determination about visitation but depending on the age of the child this may not be determinative. 

 

A determination of parenting access time will based on the court’s assessments of a parent’s character, temperament and sincerity after a full hearing has been held on what the child’s best interests are.

 

Once you file for divorce you can file an Order to Show Cause for pendente lite relief to ask that the Court award you temporary visitation during the pendency of your divorce proceedings if you are not seeing your child or if you want more time with your child. 

 

As you can see there are many rights and entitlements involved in a divorce proceeding.  If you have any questions about this article, please contact me at 718-864-2011



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