Frequently Asked Questions About Filing For Divorce
Many people have complex questions that delay their divorce filing. At The Law Office of Lauren S. Cohen, LLC, I understand how challenging the divorce process can be here. Here I have compiled some frequently asked questions and answers about divorce filings.
What are the grounds for divorce in New York?
Domestic Relations Law §170 provides seven “grounds” for divorce in New York. Five of these are based on the “fault” of one of the parties and include cruel and inhuman treatment; abandonment or constructive abandonment for one or more years; imprisonment for three or more years and adultery. The other two grounds allow for a “no-fault” in which neither party is judged to be “at fault;” living separate and apart under a separation agreement for more than one year and the newest ground, the marriage has irretrievably broken down for a period of more than six months.
Must I have a separation agreement to get a divorce?
No. As noted above, living under a separation agreement is only one of the ways to obtain a divorce. Most people filing today are choosing the newest grounds for divorce, which came into effect in October 2010. The Domestic Relations Law now provides that if the marriage has irretrievably broken down for a period of more than six months, regardless of fault, there are grounds for divorce.
How long must I reside in New York to begin a divorce action?
An action for divorce may be maintained when any of the following residency requirements are met:
- The parties were married in New York and either of them is a resident of New York when the action begins and have been for a continuous period of one year immediately before commencement of the action.
- The parties have resided in New York as husband and wife and either of them is a resident of New York when the action begins and have been for a continuous period of one year immediately before commencement of the action.
- The grounds for divorce occurred in New York and both parties are residents of New York at the time of the commencement of the action.
- Either spouse has been a resident of New York for a continuous period of at least two years immediately preceding the commencement of the action.
How long will a divorce take?
An uncontested divorce can generally be processed and a judgment obtained within 30 days. A complex divorce proceeding involving disputes about custody, valuation and ownership of property and other issues can take up to a year as these will require court intervention.
What Is “Equitable Distribution?”
Under New York law, the court is empowered to divide marital property in accordance with certain factors and principles of “fairness.” The general term used for this division of marital property is “Equitable Distribution.” New York is not a community property state.
Can I get maintenance, formerly known as alimony or spousal support?
There are three different durations of maintenance; temporary, durational and permanent.
- Temporary maintenance: In October 2010, New York enacted guidelines for temporary maintenance. Temporary maintenance is paid to the less monied spouse during the pendency of the divorce action. New York Law now provides a formula for providing the spouse with less resources enough money to help with living expenses during the divorce proceeding.
- The stated purpose of the guidelines was to provide consistency and predictability for temporary maintenance awards in the same way that the child support guidelines do.
- Pursuant to the guidelines, maintenance is to be awarded during the divorce when one party’s income is less than 2/3’s of the other spouse’s income.
- The amount of maintenance is to be the lesser of a) 30% of the payor’s income minus 20% of the nonpayor’s income or b) 40% of the combined income minus the nonpayor’s income.
- Durational maintenance: Is maintenance set by the court for a fixed period of time after the conclusion of the divorce proceeding.
- Permanent maintenance: Is also known as “lifetime” maintenance. There is no fixed duration for permanent maintenance.
In determining the length of time and the amount of maintenance to be awarded after the conclusion of the divorce proceeding, the court must consider the standard of living of both spouses that was established during the marriage, the circumstances of the case and of the parties, whether the spouse who is getting the award lacks sufficient property and income to provide for his/her reasonable needs and whether the party paying the maintenance has sufficient property and income to provide for the other’s reasonable needs. Factors which must be considered in determining amount and duration are:
- The income and property of each spouse, including marital property distributed to each spouse
- The duration of the marriage and the age and health of each spouse
- The present and future earning capacity of each spouse
- The ability of the spouse seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary to do so
- Reduced or lost lifetime earning capacity of the spouse seeking maintenance as a result of having foregone or delayed education, training, employment or career opportunities during the marriage
- The presence of children of the marriage in the respective homes of each spouse
- The tax consequences to each spouse
- Contributions and services of the spouse seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other spouse
- The wasteful dissipation of marital property by either spouse
- Any transfer of property or encumbrance made in contemplation of a matrimonial action without fair consideration
- Any other factor which the court shall expressly find to be just and proper
Am I entitled to my spouse’s pension?
Yes. All retirement benefits acquired during the marriage are marital property subject to equitable distribution. Retirement benefits include pensions, IRAs, 401(K)s, annuities and any other form of deferred compensation.
Must My Spouse Agree To A Divorce?
No. A divorce can be either uncontested or contested. If the parties are in agreement about the divorce, custody, child support, maintenance and division of property, the divorce is termed “uncontested” and can be obtained by means of signatures on the appropriate divorce agreements and documents.
If the parties cannot agree, the divorce is termed “contested.” A divorce can still be obtained but will require court intervention in the proceeding and may result in the court determining issues relating to the divorce instead of the parties agreeing.
What Is An Initial Consultation And Why Do I Need One?
An initial consultation* provides you with a wealth of information about your rights under New York law and an individual assessment of your case. While one can easily find general information, each divorce situation is unique as the parties’ marriage. What applies to one couple’s situation will not necessarily apply to another couple’s situation. An initial consultation in our office generally lasts 30-45 minutes. During that time, we will assess your individual situation, answer all of your questions and concerns, and you will leave knowing what to expect should you decide to proceed with a divorce.
Do Not Wait To Get Answers To Your Questions
*There is a modest consultation fee for Divorce/Family Law matters.