Faqs

The information below is meant to provide a general overview of New York State divorce procedure and terminology. Every divorce case presents its own set of facts. When you visit my office, you will receive a consultation tailored to your particular situation, including specific advice on your rights and obligations.

Divorce

What is an uncontested divorce?

An uncontested divorce is when both parties have reached an agreement on all issues. The issues include, but are not limited to, occupancy or sale of the marital home, distribution of assets, payment of debts, custody, and visitation of children, child support, maintenance (alimony), medical insurance, and life insurance. I will prepare a stipulation of settlement and other documents for signature. Please note that I cannot represent you and your spouse. Your spouse can retain his or her own attorney or decide to proceed without legal representation. You will not have to appear in court.

How do I start the process?

There are two ways to begin the process (1) I can send a letter to your spouse advising him or her that I have been retained with a request that he or she or his or her attorney call me within a specified period of time or (2) We can immediately start an action for divorce on your behalf and have your spouse served with divorce papers. If you are in a situation that requires immediate court intervention, such as financial hardship, an application to the court for money may be brought at the same time.

 

How do I file for divorce?

A divorce action is started by filing a document called a summons with notice (“action for a divorce”) with the county clerk. The summons states that you are seeking a divorce, the grounds for the divorce, and other relief you are seeking. You are called the plaintiff and your spouse is the defendant. This document is served on your spouse by a process server. Sometimes, a verified complaint is filed and served with the summons with notice. A verified complaint provides specific details of the grounds for divorce.

 

What are the grounds for divorce in New York?

In New York, there are seven grounds for divorce. There are specific requirements for each of the grounds. At your initial consultation, I will explore the grounds that best fits your situation. (1) cruel and inhuman treatment, (2) abandonment (3) your spouse has been imprisoned, (4) adultery, (5) you live separately for a year after judgment of separation is issued, (6) you live separately for a year after a separation agreement is signed, and (7) your relationship is broken down irretrievably for a period of at least (6) months prior to commencement.

Can I get a divorce if I don't know where my spouse lives?

If you are unsure of your spouse’s whereabouts, a search of public records will be conducted. A private investigator may be needed. Any information you can provide is useful, including last known address, date of birth, driver’s license number and social security number. If your spouse cannot be located after a diligent search has been conducted, or if we are unable to personally serve him or her with the summons, we will request that the court direct an alternate method of service, such as publication in a newspaper. Regardless of whether your spouse is ever actually located, you can obtain a divorce, provided a diligent effort is made to locate him or her.

What should I do if I was served with a summons for divorce?

You should contact an attorney immediately. You only have 20 or 30 days to formally respond depending on how you were served. If you fail to respond in time, you are in default, and your spouse may be granted all of the relief that he or she has requested. By the same token, you will not be able to get the relief you are entitled to.

What can I do if my spouse has gotten a judgment of divorce against me by default?

You should contact an attorney immediately. You have a limited amount of time in which to ask the court to vacate the divorce. Whether or not the court allows you to vacate your default depends on several factors. I will review those factors at your consultation. If the default judgment is vacated, the divorce action starts over again as if the default never happened.

What happens after the summons is served?

Depending on the facts of your case, a four-way conference may be held to negotiate a settlement. Otherwise, a request for judicial intervention is filed, a judge is assigned to your case, and a preliminary conference is scheduled.

What will happen at the preliminary conference in court?

At the preliminary conference, an agreement will be entered into that sets forth a schedule of resolved and unresolved issues, directs the appointment of necessary experts to conduct appraisals, determine who will pay for them, appoints an attorney for the children, if needed, and determines when documents must be exchanged and depositions held. The preliminary conference stipulation will be “so-ordered” by the judge and is binding on both parties. It may also contain agreements resolving matters of immediate importance, such as agreements to support the household during the divorce.

Marital property vs. separate property

Generally, all assets acquired during the marriage are marital property irrespective of whose name it is held. While the marital property is distributed by the court, separate property is not. Examples of separate property include property that was owned prior to the marriage, property acquired after the commencement of an action for divorce, property acquired by gift or inheritance, and personal injury awards. Marital property includes real property, vehicles and other personal property, bank accounts, pensions, and other retirement benefits, an interest in a business, and enhanced earning capacity (a license or degree earned during the marriage). The line between separate property and marital property blur when both types of property are commingled.

What does equitable distribution mean?

Equitable distribution is the manner in which the parties’ marital property is divided and debts allocated by the Court upon divorce or by the parties upon agreement.

MAINTENANCE

Temporary maintenance

A recent change in the law of New York state requires a court to award temporary maintenance to the nonmonied spouse pursuant to a statutory formula.

Example 1

(where payment would not be made)

Step #1:

Determine Each Party’s Income and Combined Income:

Payor’s Income: $ 90,000.00

Payee’s Income: + 60,000.00

Combined Income: $150,000.00

Step #2:

Perform Calculation #1

30% of Payor’s Income (30% x $90,000.00)$ 27,000.00

20% of Payee’s Income (20% x $60,000.00)- 12,000.00

Result of Calculation #1: $ 15,000.00

Step #3:

Perform Calculation #2

Payor’s Income: $ 90,000.00

Payee’s Income: + 60,000.00

Combined Income: $150,000.00

Multiplied by 40% ($150,000.00 x 40%)$ 60,000.00

Subtract Payee’s Income: – 60,000.00

Result of Calculation #2: 0.$0

Example #2:

(where payment would be made)

Step #1:

Determine Each Party’s Income and Combined Income:

Payor’s Income: $ 300,000.00

Payee’s Income: + 100,000.00

Combined Income: $ 400,000.00

Step #2:

Perform Calculation #1

30% of Payor’s Income (30% x $300,000.00)$ 90,000.00

20% of Payee’s Income (20% x $100,000.00)- 20,000.00

Result of Calculation #1: $ 70,000.00

Step #3:

Perform Calculation #2

Payor’s Income: $ 300,000.00

Payee’s Income: + 100,000.00

Combined Income: $400,000.00

Multiplied by 40% ($400,000.00 x 40%)$ 160,000.00

Subtract Payee’s Income: -$100,000.00

Result of Calculation #2: $ 60,000.00

In Example #2,
the payor would have to pay the lesser of the two calculations or $60,000.00.

Child Support

How does the court determine how much child support a parent must pay?

The New York law that governs the support of children is referred to as the child support standards act (“CSSA”). According to CSSA, the basic child support obligation is determined as a percentage of the non-custodial parent’s income less FICA (Social Security and Medicare taxes) and maintenance paid, if any. The percentages are 17 percent for one child, 25 percent for two children, 29 percent for three children, 31 percent for four children, and at least 35 percent for five or more children.

What other forms of support will the court direct?

The court can direct the parents to pay all or a portion of the cost to provide medical insurance for the child, the child’s uncovered medical expenses as well as child care and education costs.

Order of Protection

Where do I get an order of protection?

An order of protection can be obtained from either the family court or the district court. For certain criminal offenses, the district court will issue an order of protection when the defendant is arraigned (such as if he or she first appears in court and pleads not guilty). the district attorney prosecutes the case on behalf of the state. The initial order of protection, called a temporary order of protection, will remain in effect until (1) it is replaced by a permanent order of protection or (2) dismissed. A permanent order of protection can remain in effect from one to three years. For civil offenses an order of protection can be obtained from the family court. How do I obtain an order of protection?

If you are a victim of a crime, the district attorney will request an order of protection for you. If the defendant has not been charged with a crime, you will have to go to the probation department of the family court.

How do I obtain an order of protection?

If you are a victim of a crime, the District Attorney will request an order of protection for you. If the defendant has not been charged with a crime, you will have to go to the Probation Department of the Family Court.

Appeals

What is an appeal?

An appeal is a formal request that a higher court review a lower court’s order or judgment

 

How long do I have to file an appeal?

For Supreme Court orders, you have 30 days from the date of service of a copy of the order or judgment with notice of entry. for family court orders, you have 30 days from service of the order to file “objections”. If the family court order denies your objections, you can appeal this denial to the Appellate Division of the Supreme Court.

Rates & Court Costs

How much will my divorce or family court matter cost?

It is impossible to determine because every case is different. However, your total cost consists of attorneys’ fees, court costs, and disbursements. For a very simple uncontested divorce, we can usually offer you a flat fee. For a contested divorce or family court matter, I will require a retainer against which you will be billed by the hour. The initial retainer amount will be quoted to you at your free initial consultation and is based upon the facts of your case.

 

How much are the court costs?

There are no court costs in family court. The court costs in Supreme Court are:

$210for an index number

$95 for a Request for Judicial Intervention

$35 to file a stipulation of settlement

$45 to file a motion

$30 for a Note of Issue.

and at leas t$5 for a certified copy of your judgment or order

What are disbursements?

Disbursements are the expenses required for your case. Common disbursements include process server fees, private investigator fees, express mail, stenographer services, appraisals, and court costs. Disbursements are the responsibility of the client and are not part of the retainer.