TEN NEW YORK DIVORCE FAQS

Addressing your Most Frequently Asked Divorce QuestionsLawyer-with-Judge-300x200

As a divorce attorney, I do my best to keep my clients informed and educated about each step of their divorce procedure. Often, this means answering some of the most common questions that might arise about the complications of marriage dissolution. To help people facing family law issues to address some of the most typical concerns surrounding divorce, I’ve put together this list of some frequently asked divorce questions that I have answered in my previous blogs and web site pages.  Child custody, parenting time, child support, maintenance (spousal support) are important issues that need to be decided in a divorce as well but I do not discuss them in today’s blog.

Question 1: What Are New York Divorce Residency Requirements?

Parties to a divorce in New York must meet the residency requirements for the state, or their case may be dismissed. To apply for a divorce, residents must meet with the following requirements:

  • The marriage ceremony must have taken place in New York, and one spouse must have had legal residence for at least one year prior to action taking place.
  • Both spouses lived as a married couple in New York, and one or both residents has been considered a resident for at least one year prior to action taking place.
  • The grounds for divorce took place in New York, and at least one spouse has been a resident for at least one year prior to action taking place.
  • The grounds for divorce took place in New York and both spouses were residents at that time.
  • At least one spouse was living in New York as a resident for at least 2 years prior to filing the case.

Question 2: What are Automatic Orders in New York Divorce?

There are some “automatic orders” in New York divorce. The first prohibits enumerated property from being transferred, impaired, or used except for in customary expenses. The second dictates that joint retirement accounts cannot be used or impaired during divorce. The third prohibits either party from creating debts that might damage the marital estate value. The fourth ensures that all medical or dental insurance in place for both parties, and children involved remains in place. Finally, the fifth order ensures that all life, car, rental, and homeowners insurance remain in place during the divorce.

Question 3: What is Serving a Summons with Notice in Divorce?

New York divorces follow similar procedures to many other lawsuits. The spouse or plaintiff filing or their divorce attorneys must provide the defendant with a notice including a summons and/or a summons with a copy of the divorce complaint. The notice is a description of the nature of the lawsuit. Delivering these documents is called “service of process“, and failing to complete this action can result in case dismissal. Once a defendant has been served they must appear in the case or serve and file an answer, or risk a default judgement on either some, or all the claims made by the plaintiff.

Question 4: What is Equitable Distribution in Divorce?

Equitable distribution is a term used to refer to the method of dividing obligations, assets, and property in a divorce, between both spouses. Equitable distribution doesn’t necessarily mean dividing assets equally, but instead it means that the court will divide them as it deems “fair”. Equitable distribution involves a determination of which property should be divided, the valuation of that property, and the division of the property or assets.

Question 5: Which Tax Considerations Arise in Divorce?

Tax filing status is a significant concern for many people dealing with divorce. Some language in a settlement might dictate that husbands and wives can file taxes separately or jointly in any year that they were still married for some portion of that year. There are also various considerations regarding tax that can arise about children. Frequently, as part of a divorce settlement, parties will need to discuss the process of claiming children on a tax return. As a divorce lawyer or a divorce mediator I always recommend that the people I work with seek tax advice from a fax professional such as a Certified Public Accountant as I do not profess to know all the ins and outs of tax law nor do I try to give tax advice.

Question 6: What are Collaborative Law Divorce Cases?

There are numerous ways to approach divorce besides litigation. One of the simplest forms of dispute resolution is collaborative divorce. During collaborative divorce, parties enter into “participant agreements” wherein they agree to negotiate their divorce settlement without involving litigation.  Instead, the couple accesses teams of collaborative attorneys, usually a neutral financial professional, and a neutral psychological professional or a divorce coach. During the process of collaborative law, parties sometimes engage other experts for assistance.  I like to think of collaborative law as somewhere in between mediation and litigation as the parties have their own attorneys through the process, however they are not arguing their case in front of a judge. Rather the case is resolved through a process and meetings with the team.

Question 7: Does Marital Debt Need to be Addressed in Divorce?

There are various issues that need to be addressed during a divorce settlement to allow for a final order to be issued by the court. Decisions need to be made about the debt that has been gathered by both spouses during the marriage that can be deemed marital. Parties often expect that their loans and debt will be split in a certain way, only to find that a court approaches things differently.  Like marital assets, the law for marital debt is equitable distribution.

Question 8: What Is Divorce Mediation?

Divorce mediation is a popular method of alternative dispute resolution in New York. The process involves a voluntary process of settlement and negotiation that allows spouses an opportunity to make their own decisions regarding child custody, how assets will be divided, and whether one spouse should pay maintenance to another with a neutral divorce mediator like myself. I always recommend, some heed the recommendation and some do not, to also consult separately with their own review attorneys. Review attorneys usually operate behind the scenes as consultants to the mediating parties. Mediation will not always be appropriate for every case, but it can offer a useful alternative to litigation.

Question 9: Are my Retirement Savings Shared in Divorce?

Most people will need to share their retirement savings in divorce, to the extent that those assets were earned during the marriage. Portions of assets that were earned before the marriage, or following the end of the marital estate (usually the filing date of settlement date in non-litigated cases) can be seen as separate property, and therefore not shared. Most of the time, if you’re going through a divorce and you and your spouse have money in retirement accounts, you will be expected to share those assets in an equitable fashion either with assistance by your divorce attorneys, collaborative lawyers, mediators, or in litigated cases, with the help of a judge.  Retirement savings, like other assets are part of equitable distribution.  Equitable distribution does not necessarily mean equal distribution, although that is often the default starting point, rather equitable means what is fair.  The parties in a negotiated settlement with their lawyers or with a divorce mediator get to agree on what is fair and equitable.  In litigated cases that go all the way through a trial a judge decides. While the vast majority of cases settle, the question is at what point do they settle? Some settle on the eve or day of trial. Some, however are litigated to the end and could even be appealed.

Question 10: What Happens to the Family Home in Divorce?

One of the biggest assets for any couple to consider during divorce is the family home. The family home is an emotional matter to consider, and at times the largest asset to consider in terms of value, although investments and savings can be considerable assets too. Though it’s possible to leave concerns regarding asset distribution to a judge, I frequently find that this leaves to problems for both spouses. Most couples are best served when they make use of their right to come up with personal solutions to distribution problems. I am always willing to try to work through the issues for those who will engage in meaningful conversation. Sometimes, however, litigation is only way to move a case along.

If you’re looking for help with divorce issues, please feel free to contact me at your earliest convenience, either through our online form, or by getting in touch at (516) 333-6555.  I offer free initial consultation of up to a half hour.