Basic Facts and Procedures
Joanne P. Monagan Esq.
If you are involved in a contested divorce proceeding it means that you and your spouse do not agree on one or more of the most essential issues affecting your life now and for the future. These issues include whether or not to divorce, financial arrangements, child care, spousal support, custody, and other matters of the utmost importance to you and your family.
In this section of the O'Brien Monagan Law Firm P.C. web site, I am presenting a concise overview of the complex factors and procedures that are found in New York divorce law. I have more than 30 years of experience representing clients in circumstances like yours. As your attorney, I will be dedicated to providing you with the advantages of this experience. Attorneys at O'Brien Monagan Law Firm P.C. are experienced, trusted, and dedicated to client advocacy. You do not have to do this alone. We will always stand by you.
Following are facts and procedures that affect all individuals involved in New York State divorce proceedings.
The definition of divorce in NY State
Divorce in New York State is the ending of a marriage by order of the NY State Supreme Court. Although the primary reason for a divorce proceeding is to end a marriage, the Court will also decide issues involving children, property, and finances.
The identification of divorcing spouses in legal proceedings
The spouse who initiates the divorce is called the plaintiff. The other spouse is called the defendant.
The court of jurisdiction in a divorce proceeding in New York State
In NY State, only the State Supreme Court hears divorce cases and is authorized to grant a divorce.
If you cannot locate your spouse and wish to begin a divorce action
The law in New York State requires that defendants in divorce actions must be personally served with the appropriate summons. If your spouse's whereabouts is unknown, you can file an application for alternate service with the Supreme Court Clerk's Office in the county where your divorce will be considered.
The role of Family Court in a divorce proceeding in New York State
Although you cannot obtain a divorce from Family Court in NY State, Family Court judges consider family law cases involving child abuse and neglect, adoption, custody and visitation, support, domestic violence, guardianship, juvenile delinquency, paternity, and PINS. A married person in New York State may seek spousal support through a Family Court Petition, and a divorced person can seek spousal support modifications through Family Court, but a divorced person cannot seek a new order of support in Family Court, and must instead petition the NY State Supreme Court.
The difference between a contested divorce and an uncontested divorce
Uncontested divorce means that each spouse desires to be divorced, and each agrees about the division of property, all financial distribution issues, spousal support, child support and custody, and other matters that could be litigated. Options for couples pursuing uncontested divorce include: The Court's free Uncontested Divorce Forms Packet, the Do-It-Yourself Uncontested Divorce Program (DIY), and divorce mediation programs that you can pursue. Note that the DIY requires that your marriage has been over for at least six months, that there are no children under age 21, and that all material property issues have been settled.
Contested divorce means that either spouse objects to proceeding with a divorce, disagrees with the grounds or legal reasons for the divorce, and/or disagrees about financial issues, child custody, support, and other important issues.
How to begin divorce proceedings, and do you need an attorney?
In order to initiate a divorce in New York State, the following legal requirements must be met:
- Residency: you and/or your spouse must have lived in NY State without interruption for a period of one year.
- Grounds: you must have a legally acceptable reason to obtain a divorce which in New York State. You must prove one of the following grounds:
- Cruel and inhuman treatment
- Confinement in prison for 3 or more consecutive years
- Living separate and apart pursuant to a separation agreement
- Irretrievable breakdown in the marriage for a period of at least 6 months.
Contested divorce proceedings are invariably complex and can involve lengthy deliberations with NY State Supreme Court judges and other officials. Most people would agree that being represented by an experienced family law attorney dedicated to protecting your rights and pursuing the best interests of you and your children is essential. O'Brien Monagan Law Firm P.C. family law attorneys have decades of experience, are well known and trusted in the community, and will always stand by you. This is our pledge and it reflects our first priority that is client advocacy.
Contested divorce process and timeline
New York State's Unified Court System authority has established the following “case process and time line” sequence for contested divorce actions:
- Plaintiff files with the County Clerk's Office either a Summons and Verified Complaint or a Summons with Notice.
- Within 120 days of filing (above) plaintiff has the defendant served with the Summons and Verified Complaint or Summons with Notice.
- If neither spouse filed a Notice of No Necessity, then a Request for Judicial Intervention (RJI) must be filed in Supreme Court by the plaintiff within 45 days from service of the Summons and Verified Complaint or the Summons with Notice.
- If either spouse filed a Notice of No Necessity, the Request for Judicial Intervention (RJI) must be filed in Supreme Court by the plaintiff within 120 days from service of the Summons and Verified Complaint or Summons of Notice.
- A Preliminary Conference must be convened within 45 days of assignment of the case to a judge. Both spouses must be present at the conference.
- A Statement of Net Worth must be exchanged and filed by both spouses not later than 10 days prior to the Preliminary Conference.
- A Compliance Conference shall be scheduled with both spouses present unless the Court dispenses with it based upon Stipulation of Compliance filed by both parties.
- Discovery must be completed, the Note of Issue filed, and a trial date scheduled not later than six months from the date of the Preliminary Conference.
- The contested divorce case will be completed and disposed of by the Court either by a Settlement or a Trial/Inquest.
- Following a signed Judgment of Divorce filed and entered in the County Clerk's Office, any other activity (such as new motions) is considered Post-Judgment.
Separation agreements used to obtain a divorce in NY State
Separation agreements can provide the basis for a divorce. Both spouses must be living separate and apart for at least one year after signing a separation agreement for that agreement to be used as the basis for a Judgment of Divorce. Contested issues may be present as you move from separation to divorce, so it is important to be represented by an experienced family law attorney dedicated to protecting your interests.
Factors in child custody decisions
Custody is a parent's legal right to control their child's upbringing. Both parents have the right to seek custody. The principal consideration in child custody decisions in New York State law is: What is the best interests of the child(ren). Factors considered by judges include:
- Who is and has been the child's primary caretaker?
- Quality of the home environment that can be provided by each parent
- Each parent's “fitness,” based upon lifestyle, employment, mental and physical health, stability, and related factors.
- Each parent's ability to provide emotional and intellectual support for the child
- Which parent the child prefers to live with
- Whether the child would be separated from siblings
- Whether either parent has been abusive.
The difference between legal custody and physical custody
Legal custody is the right to make the most important decisions about your child, including deciding matters related to health care, education, religious upbringing, residence, and other important matters
The person with physical custody is the individual with whom the child lives on a daily basis. A parent with physical custody is also known as the custodial parent or the primary caretaker. The court may grant primary custody to someone other than a biological parent.
The purpose of child support and how it is calculated
Child support is the money paid to the custodial parent by the non-custodial parent pursuant to a court order. Child support is determined by formula in New York State and may be awarded by a Supreme Court judge in a divorce settlement or by Family Court in a child support proceeding. New York law states that children are entitled to share in the income and standard of living of both parents.
The child support formula in New York requires the court to determine the parents' total net income, then multiply the net income by a percentage for each child as follows:
- 17% for one child
- 25% for two children
- 29% for three children
- 31% for four children
- No less than 35% for five or more children
The amount calculated is deemed to be the total amount of child support the children of the marriage are entitled to. This amount is then divided in proportion to each parent's net income. The court in this way determines each individual parent's responsibility to support the children.
The court may also require parents to pay additional support for child care expenses, educational expenses, and medical expenses.
New York State's Equitable Distribution Law
New York State law requires the courts to divide property and other assets as equitably as possible based upon two property classifications identified as: Marital Property and Separate Property.
Marital Property and Separate Property definitions in New York State Divorce Law
Marital Property is defined as all property acquired by either or both spouses from the date of marriage until the date of a separation agreement or commencement of a divorce action. Which spouse holds the title of any property is irrelevant. The law is based on the concept that marriage is an economic partnership, and tangible property should be equitably divided. There are some surprising applications of this rule. Gifts made between spouses are considered marital and not the separate property of the recipient. Lottery winnings are considered marital, particularly if the ticket was purchased with marital property. And by the way, your paycheck is also marital property.
Property that is not considered marital is identified as “Separate Property” by law. Any property owned prior to the marriage is separate property. Inheritance proceeds, in any form, such as real property, cash, stocks, and bonds, is separate property, whether it is received before or after the marriage. The settlement proceeds from a personal injury matter are the separate property of the spouse receiving the funds. Property acquired after the commencement of the divorce action is separate property, unless marital assets were used to obtain it.
There are some common pitfalls that people may be unaware of that may change separate property into marital property. For example, if one spouse receives a personal injury settlement and deposits the funds into a joint bank account with the other spouse, this separate property has become marital. The idea is that the receiving spouse has intentionally changed the ownership of a separate property from separate to marital by depositing it in a joint account where both spouses are titleholders and have the legal ability to access all the funds in this joint account. This concept also applies to inheritance proceeds. For example, if one spouse inherits a parent's home and decides to refinance the property to make improvements, and both spouses' names are the new mortgage, and the title is transferred into both names, the property has become marital.
New York State's Domestic Relations Law establishes the factors judges must consider when making judgments about equitable distribution in a divorce proceeding. Competent legal representation is important in complex matters like equitable distribution. O'Brien & Associate attorneys have extensive experience in this area of the law and will always protect your interests.
Equitable Distribution does not always mean a 50-50 split of property and assets in New York
New York is an equitable distribution state, although equitable does not necessarily mean equal or a 50-50 split. Generally, the law provides that marital property should be divided equitably or fairly. Typically, a divorce will involve the division of equity in real property, retirement accounts, bank accounts, vehicles, and household contents. The exact division will be different for each case, taking into consideration the parties' goals and circumstances. Marital debt also must be equitably divided. In most cases, the interplay between the division of property and debt drives the resolution. An agreement reached between spouses is usually preferable over a decision by a judge after trial. If spouses are able to work together, they are usually more satisfied with the terms, which can incorporate details that a judge will not.
New York State rules related to alimony, aka spousal maintenance
Alimony (aka spousal maintenance or spousal support) is a court ordered directive that requires one spouse in a divorce proceeding to support the other when dependency has been established. While precedent and guidelines exist in New York State, the court has considerable discretion in determining the amount and duration of spousal support. The court will consider many factors during alimony deliberations, including:
- The length of the marriage
- The conduct of each spouse during the marriage
- Age and health of the individuals
- Occupations of each and their incomes
- The standard of living during the marriage
- Sources of income
- Vocational skills and employability of the spouses
- Assets and debts of the couple, individually and together
- Any special needs
- The opportunity for each individual to acquire future income and assets
- Child support and custodial issues that are related but distinct from spousal maintenance
Alimony determination is one of the most complex and contentious issues that confront persons involved in divorce proceedings. As with other aspects of divorce processes, competent, experienced, and dedicated legal counsel is recommended to guide you and protect your interests. O'Brien Monagan Law Firm P.C. attorneys are experienced negotiators and will always advocate for your best interest during spousal maintenance negotiations. You don't have to do this alone.
The difference between a divorce and an annulment in NY State
NY Domestic Relations Law Section 140 defines a civil annulment and the basis for it. Religious annulments are governed by the particular faith and are not addressed by New York's civil statute. While a divorce ends a valid marriage, an annulment establishes that the marriage is not legally valid based upon proof of one of the following conditions:
- Either spouse was unable to engage in sexual intercourse at the time of the marriage
- Following the marriage, either spouse became incurably insane for at least five years. If the sane spouse is under 18 years of age and pursues an annulment, the court may require the sane spouse to provide spousal support. The court will not grant an annulment if the sane person under 18 freely cohabited with the other spouse after turning 18 and had sexual relations.
- Either spouse is unable to comprehend the nature, effect, and consequences of marriage because of mental illness.
- One spouse was forced into the marriage and agreed to be married while under duress.
- A spouse consented to marry as a result of a fraud that would have deceived an ordinarily prudent individual and was essential to the consent to marry.
Domestic violence considerations
If domestic violence is a factor, you should apply for an order of protection without delay. This is a court order directing one person to stop certain conduct, such as harassment, and may also direct the accused to be excluded from the family residence, to stay away from specified family members, their homes, schools, and places of employment. Our attorneys have extensive experience and will provide guidance and support when domestic violence is an issue. Also please note that I have included extensive related information on this web site that may be valuable to persons experiencing the devastating effects of domestic violence.