FAQs

The length of a divorce varies in each case and depends on numerous factors including the parties to the divorce, the county the divorce is filed in, the judge, and the nature of the divorce. Uncontested divorces where both spouses agree to the divorce and are able to resolve all issues related to child custody, support, visitation, equitable distribution of assets and debts, and how all personal and real property is divided generally take between four to six months. Contested divorces generally take anywhere between six months and two years. If the parties cannot agree on issues such as custody or finances, the case will take even longer.

A lawyer is prohibited from representing both the wife and the husband in an action for divorce to avoid any conflict of interests that may arise. If your spouse served you with papers, you must obtain your own attorney in order to ensure all of your rights are protected. However, if you and your spouse wish to obtain a divorce through mediation, you may use the same attorney to act as a mediator in order to facilitate an agreement between both parties.

Under current New York law, you may seek a divorce on “no-fault” grounds which means that you may have proper grounds for divorce simply based on the fact that the marital relationship irretrievably broke down. As of October 12, 2010, you no longer need to prove that one party was at fault for the deterioration of the marriage by adultery, abandonment, cruel and inhuman treatment, or imprisonment. If your spouse does not answer the complaint after being properly served, the court may grant a divorce on default.

Custody of a child or children may be determined either through an agreement made by both parties outside of court or through a verdict by a Supreme Court or Family Court judge after a trial on the issue. A judge will evaluate a number of factors when making the determination who will have custody of the child. The judge will look at such factors including who is primarily responsible for the child’s well being, each parents relationship with the child, the overall parenting ability of both parents, where each parent lives, and all other relevant factors. Usually the issue of child custody is presented in the context of a divorce or legal separation but also arises in circumstances where unmarried parents establish paternity.

In New York, parents are legally required to support their children until the age of 21. Child support is occasionally extended until the child graduates college, or attains the age of 22, whichever occurs first. A parent is no longer required to pay child support for a child under the age of 21 who is emancipated. Emancipation may occur if the child becomes married, is self-supporting, or joins the military.

The answer depends on the facts and circumstances of your particular case. If the child support payments are made through a court collection system, you may have an automatic right to review the amount after a set period of time. If the child support payments are made directly to the spouse, you must prove your case based on the standards set forth in case law if the stipulation was signed prior to July 15, 2010. If the stipulation was executed after July 15, 2010 or if the child support award was ordered by the judge after a trial on the issue, you may seek an upward or downward modification in child support if the income of either parent changed by more than 15% or if more than three years elapsed since the date of the order or agreement.

No, you are not automatically excluded from property that is only in your spouses’ name. The share of the property you will receive is dependant on whether the property is classified as separate or marital as well as all of the other factors the court uses to determine equitable distribution.

An annulment is different from a divorce because an annulment legally nullifies the marriage, making it as if it never existed. Domestic Relations Law §140 provides for six different grounds where an annulment may be obtained. The following grounds may be used to obtain an annulment: a marriage that was entered into was based on fraud, one partner entered into the marriage because of duress or pressure from their spouse, parties who married were under the age of 18, one of the spouses is unable to understand the nature, consequence or effect of the marriage due to mental incapacity, after the marriage, one of the parties becomes incurably insane for at least five years, or if either spouse was incurably unable to have intercourse at the time of marriage.

All property acquired and income earned during a marriage is subject to equitable distribution in New York. Equitable distribution is the process of dividing property acquired by or owned by the parties upon the termination of the marriage. The courts will separate what property is considered separate property and what is marital property. Separate property is property acquired before the married or property that is inherited by one spouse. Your spouse does not have any right to your separate property and all separate property will remain yours even after the divorce. Marital property is property acquired during the marriage and is distributed equitably between both parties.

If you have already been served with divorce papers or have your file from an attorney who was previously representing you in your divorce, you should bring these papers with you to the free consultation. You may also want to write down any questions you may have prior to consultation appointment and bring it with you so that you may have all of your questions answered in the initial consultation.