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DIVORCES
A divorce is legally the end of a marriage contract. The law takes the end of a marriage
contract very seriously, and the process tends to be a bit more
complicated than one might expect.
Grounds for Divorce:
Whether contested or uncontested, New York State
requires that to end a marriage, one of the parties must provide a reason, or a "ground" for divorce. There are seven possible grounds for divorce in New York. The most recent is the No Fault divorce ground, which is bound to become the most common of all seven grounds. The No Fault divorce bill became effective on October 12, 2010, and is codified as Domestic Relations Law 170(7). It permits a court to grant a divorce where one of the parties states,
under oath, that the marriage has "broken down irretrievably for a period of at
least six months."
The other six grounds for divorce are still available, though they are likely to be used far less frequently now that No Fault is available. Among those additional grounds are cruel and inhuman treatment, abandonment, constructive (or sexual) abandonment, adultery, and living separate and apart pursuant to a separation agreement or judgment of separation for a period of one or more years.
No matter which ground is claimed, the divorce itself is only one part of the process, since issues of dividing property, support, and parenting all have to be addressed. In fact, the legislature made this point crystal clear in the new DRL 170(7) when it specifically provided that a divorce granted on those grounds will be held in abeyance "until
the economic issues
of equitable distribution of
marital property, the
payment or waiver of spousal
support, the payment of child support,
the payment of
counsel and experts' fees
and expenses as well as the
custody and visitation with the infant children of the marriage have been
resolved by the parties, or
determined by the
court and incorporated
into the judgment of
divorce."
Uncontested Divorce: An uncontested divorce means either that someone has filed for divorce, and the other spouse does not answer the complaint for a divorce (a default), or that the parties have agreed on how to resolve all the issues between them, have put that agreement in writing, and will be submitting it to the court along with a joint request for a divorce. For the latter method, typically a Settlement Agreement will be negotiated, prepared and signed by the parties. That written agreement will control how marital assets and debts are divided, as well as issues of support and parenting time. The divorce is then granted based upon the
documents submitted on your behalf, and the agreement is incorporated into the Judgment of Divorce This method typically will not require any party to appear in court, and it is usually the most cost effective and fastest way to divorce in New York.
Contested Divorce:
A contested divorce is one where the parties do not agree on one
or more of the issues involved in their case. Divorces can be fully contested, where all the issues are in dispute, or partially contested, where the parties
agree on some issues but not others. For instance, parties may agree on how to settle the financial issues between them, but custody and parenting issues remain contested. In any case, where there are one or more unresolved
issues, the divorce is contested.
Even when a
divorce begins as "contested," with the assistance of skilled attorneys and two
parties willing to engage is realistic negotiations, consensus can usually be
reached. Even the most
contentious divorces are frequently resolved by an agreement. If an
agreement is not reached, a contested divorce will end with a trial or hearing. In those cases, a judge, judicial hearing officer, or a referee will
hear testimony from the parties and experts on their behalf in order to make a
decision on the issues in dispute.
A word about Same Sex
Marriage and Divorce: New York
has joined several of its sister states in recognizing that same sex couples may
marry and enjoy the same rights and privileges as heterosexual couples. So what
does that mean for same sex couples who decide to end their marriage? In that realm not much has changed.
Even before sanctifying same-sex marriages, New York State allowed its
residents who married elsewhere to divorce in this state if their marriage was
legally recognized in the jurisdiction in which they were wed. That meant that if a New York couple
married in Vermont, and later decided to divorce, they could file for divorce
under New York law. That is still
true. If you are legally married,
no matter where you were married and no matter what your gender, and New York
has jurisdiction to hear your case (which typically means you have lived here for
the required length of time), then you can file for divorce in New York and be
protected under its laws. The laws
are the same for everyone. Every
legally married couple is entitled to the same rights, privileges, and
protections as long as they are entitled to divorce within this state.
If you are considering a divorce, call us to schedule an appointment to discuss your rights and options.
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