Divorce In New York State: Ten Things To Know Before Seeing A Lawyer
Whether you knew it was coming or taken by surprise, divorce can be difficult and overwhelming. Unless you’ve been through it before, you probably have no idea what to do or where to turn. Divorce in New York State is complicated, but it need not be confusing. There are specific steps that New York State Law, also known as The Domestic Relations Law, requires in order to obtain a divorce. With this basic information, you can have a clear understanding of what lies ahead and you will be better prepared for that all-important first legal consultation.
1. Have a legitimate reason to divorce. Until recently, the usual reasons or ‘legal grounds’ for divorce were based on one spouse doing something wrong, like adultery or abandonment. Today, we have ‘no fault divorce’ which is one spouse swearing in an affidavit that the marriage is irretrievably broken. All issues about children, finances and property, however, must have been resolved in advance.
2. Meet the residency requirement before filing. With some exceptions, either you or your spouse must have been living in NYS for a continuous period of at least two years immediately before filing. . Provided certain other requirements are met, you can still file for divorce in NYS even if you were married in a different state.
3. New York State Supreme Court grants divorces, not Family Court. Family court rules on child custody, child support and other family-related issues, however, only the Supreme Court will rule on divorce cases. Every county has its own Supreme Court with a matrimonial clerk’s office that processes divorce paperwork. Total court fees are approximately $450.00.
4. Make sure your spouse is properly served with divorce papers. Generally, papers must be served a) within 120 days after you file, b) by hand-delivery in person by almost anyone except for you, and c) anywhere, anytime but not on Sunday. Violating the rules of proper service can have potentially damaging legal consequences down the road.
5. Be patient. The length of time for each divorce varies according to whether it is uncontested or litigated. Each county also operates slightly differently; some have more clerks and judges while others are more overloaded with cases. Ensuring that paperwork is complete and on time is something you can do to help avoid unnecessary delay.
6. When ruling on custody of children, judges do not declare winners and losers. Judges adopt the prevailing legal standard known as “The Best Interests of the Child”. Therefore, your strategy in court should not be to argue why you should ‘win’ but rather, to present a persuasive statement about what you believe is best for your children and why.
7. Keep accurate records of your income and expenses. Children have an absolute right to financial support from both parents until age 21. A 50/50 custody arrangement does not relieve the higher earning parent from their obligation to pay child support, which is calculated not only by what comes in, but also by what goes out for expenses. As a general rule of thumb, expect to pay a total of at least 17% of combined parental income for one child, 25% for two, and 29% for three.
8. Unlike children, spouses do not have an absolute legal right to support. Legal ideology has shifted away from ‘the lifestyle to which you have become accustomed’ to ‘maintenance’. Simply put, unless one spouse is destined to become a public charge, the courts are unlikely to impose an order of spousal support that differs from what the spouses already agreed to.
9. Equitable does not mean equal. Generally speaking, everything you had before marriage is your separate property; everything acquired afterwards is marital, subject to equitable division, based on factors such as one’s earning potential and assets. Taking inventory of all your ‘stuff’ and assigning a value will go a long way towards reaching a fair settlement.
10. You are not alone. Now that you have some of the basics, you are ready to select your lawyer, divorce coach, financial adviser – even your friends. These are the people who will walk beside you during your journey, and who can help you become the person you wish to be on the other side.