Question 1

Where Do I File for Divorce?

Accepted Answer

To start a divorce action, papers are filed with the County Clerk (of the county where you or your spouse resides) by E-Filing online through the court program called NYSCEF.

Question 2

Legal Grounds for Filing For A Divorce?

Accepted Answer

There are 7 grounds for obtaining a judgment of Divorce.  Irretrievable breakdown in the marriage relationship for a period of at least 6 months.  This is commonly referred to as a no-fault divorce. Cruel and inhuman treatment. Abandonment for a period of one year. Under this ground there is actual abandonment or constructive abandonment. Constructive abandonment includes unjustified refusal to have sexual relations. An act of adultery. Requires corroboration beyond spouses. Confinement in prison for three or more consecutive years after the marriage. Living separate and apart, pursuant to a Separation Agreement, and substantially complying with the terms thereof.   Living separate and apart, pursuant to a Judgment of Separation, and substantially complying with the terms thereof.

Question 3

Will I Need To Go To Court?

Accepted Answer

No. If the matter is settled and resolved, a court appearance is not necessary. It may be done on submission of papers.

Question 4

What Will I Need to Prove In My Divorce?

Accepted Answer

If the ground for divorce is irretrievable breakdown in the marital relationship, then all you need to do is submit an affidavit of the breakdown of the marriage relationship for a minimum of 6 months or more. You would also need to have settled all economic issues of the marriage, equitable distribution, child custody, spousal support and child support, and attorney fees, and submit proof of same.

Question 5

Will I Need An Attorney?

Accepted Answer

No. However it is advisable if it a longer-term marriage, or there are children or property. There are many nuances and issues that should be left to the experienced attorneys. It is best to have a knowledgeable and experienced attorneys to provide guidance and recommendations.

Question 6

How is Child Support Determined?

Accepted Answer

There is a statute that provides the presumptive amount of child support that should be awarded. It is based on the party’s gross income less certain deductions, multiplied by a percentage. The percentage varies based on the number of children. 1 -17%, 2 -25%, 3-29%, 4-31%, 5+-35%.  If a parties income exceeds a cap amount, which increases over time, then it is discretionary with the court, based on certain enumerated factors set forth in the statute.

Question 7

How Is Child Custody Awarded?

Accepted Answer

Child custody is either agreed to by the parties or decided by the court after a hearing or trial. If the parties cannot agree, then the court will conduct a hearing or trial, and may appoint an attorney to represent the interests of the child. The standard the court applies is “what is in the best interests of the child”. Courts look to stability in the child’s life and balance the ability of each parent to meet the needs of the child or children. A child’s preference is not dispositive and depends on the child’s age.

Question 8

What Is Joint Custody and How Is It Determined?

Accepted Answer

Custody allows the parent to make all major decisions regarding the child.  Joint custody allows both parents to make the major decisions. The parties may agree to joint custody and if they can not agree to custody the court will decide after a hearing or trial. The courts will not award joint custody if the parties do not have an amicable relationship or show a lack of ability to work together. After a trial the courts generally do not award joint custody unless the parties show an ability to work together

Question 9

What Happens If A Party Does Not Pay Court Ordered Child Support.

Accepted Answer

If a party does not pay court ordered child support, the payee spouse may bring a proceeding for contempt, enforcement, or a judgment fixing arrears. Also, a person risks losing driving privileges under certain circumstances. If a contempt order is issued, possible incarceration, among other things.

Question 10

How is Property Divided During A Divorce?

Accepted Answer

Property is classified as either separate or marital (acquired during the marriage other than by gift or inheritance) (excepting a spouse) and until the commencement of a matrimonial action or execution of a settlement agreement.     Marital property is distributed equitably (not necessarily equally) between the parties, considering the circumstances of the case.  There are many factors the courts consider. Some factors include, the length of the marriage, age and health of the parties, need for marital residence, loss of inheritance rights or health insurance, liquidity of assets, maintenance awarded, tax consequences, and wasteful dissipation.  Each party maintains their separate property, excepting appreciation because of the other spouse’s efforts, unless they commingle it with marital property, or the property is transmuted.

Question 11

Is Alimony Awarded in New York?

Accepted Answer

Alimony is not presently awarded in New York. The courts may award spousal support, during a divorce action (temporary) and after a judgment of divorce. This is known as maintenance.  There are now maintenance guidelines, providing a formula to establish the presumptive amount of maintenance to be awarded in a case. The court may deviate if it is established to be unjust or inappropriate.

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