Many times a lawyer is the first person you talk to about your decision to pursue a divorce. For this reason, it is important to choose a lawyer you feel comfortable with and can trust. When you first arrive at your lawyer’s office, you will have to sign a “Statement of Client’s Rights and Responsibilities.” This will outline what you should expect of your attorney and what would be expected of you and the execution of this document is required by the Office of Court Administration. This is a document you keep whether or not you retain the attorney, but does not obligate you to retain the attorney.
The first topic the attorney should discuss with you is whether you can file for divorce in New York State. To file for divorce, you must fulfill the residency requirement and also have one of the 7 grounds for divorce. To establish residency, you must show that:
- You were married in New York State, and either you or your spouse lived in New York State for at least one year prior to filing for divorce; or
- You and your spouse have resided in New York State as husband and wife, and either of you have lived in New York for one year or more prior to filing for divorce; or
- The cause of action (“grounds for divorce”) has occurred in New York State, and either you or your spouse has lived in New York State for one year or more prior to filing for divorce; or
- The cause of action (“grounds for divorce”) occurred in New York State, and both you and your spouse live in New York State at the time of filing for divorce; or
- Either you or your spouse has lived in New York State for two years or more prior to filing for divorce.
Once you have established the residency requirements, you must have a cause of action (or “grounds for divorce”) to attempt to receive a divorce. There are 7 grounds for divorce in New York State:
- Cruel and inhuman treatment;
- Abandonment by the defendant for one year or more;
- Confinement of the defendant in prison for a period of three or more consecutive years after the marriage of the plaintiff and the defendant;
- Living apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment;
- Living separate and apart pursuant to a written agreement of separation; and
- The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath. (This is referred to as a “no-fault” divorce in New York.)
The lawyer should discuss the divorce process, the potential length and cost of the process, your assets and liabilities, custody, visitation and support or your children (if any), spousal support, any other material issues, and answer any questions you may have related to a divorce.
The divorce litigation process is initiated by filing a Summons with Notice or Summons and Verified Complaint upon the Defendant. The Defendant then has 20 days to serve a Verified Answer (and sometimes a Verified Counterclaim, as well). The Plaintiff then has 20 days to serve a Verified Reply, if needed. These are referred to as “Pleadings”. The next phase of divorce litigation is “Discovery”. This includes exchanging Statements of Net Worth, obtaining material and necessary documents, appraising pensions, real estate, business interests, etc., and taking depositions. During the pendency of the divorce, written requests, called “motions”, may be filed to ask the court to address certain issues (most likely temporary spousal and child support, payment of household bills, and temporary custody and access schedules) that cannot wait to be decided if and when a trial occurs. The last stage would be settlement or a trial. After the case is concluded, there may be post-judgment issues too (usually dealing with modification of child support or child custody).
The divorce process can take, on average, from 12-15 months depending on resolution of on-going negotiations, the complexity of the financial issues, the number and types of assets involved, and issues relating to minor children of the marriage. It is best to outline household income, assets, debts and all questions you may have before meeting with an attorney so that the attorney can get a full picture of the issues.
After consulting with a lawyer, if you want to pursue a divorce with that attorney, you will enter into a retainer agreement and pay a retainer to the attorney. This formalizes the attorney-client relationship and is required under the ethical rules of Professional Conduct.