Archive for the Category ◊ Divorce ◊

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:

1. 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
2. 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
3. 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
4. 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
5. 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:

1. Cruel and inhuman treatment;
2. Abandonment by the defendant for one year or more;
3. Confinement of the defendant in prison for a period of three or more consecutive years after the marriage of the plaintiff and the defendant;
4. Adultery;
5. 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;
6. Living separate and apart pursuant to a written agreement of separation; and
7. 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.

Just because you currently live in New York does not necessarily entitle you to file for a divorce in a New York Court.  In order to determine whether you can obtain a divorce in New York, you need to find out if New York courts have jurisdiction over your divorce action.  The first step is to see if you or your spouse satisfy the residency requirements set forth in Domestic Relations Law Section 230. To start a divorce (commence an action) in New York you must satisfy one of the following residency requirements:

1. The marriage ceremony was performed in New York State AND either spouse is a resident of the state at the time of the commencement of the action AND has resided in this state for a continuous period of one year immediately prior to the commencement of the action
2. The couple lived as husband and wife in this state AND either spouse is a resident of the state at the time of the commencement of the action AND has resided in this state for a continuous period of one year immediately prior to the commencement of the action
3. The grounds for divorce occurred in this state AND either spouse is a resident thereof AND has resided in this state for a continuous period of one year prior to commencement of the action
4. The grounds for divorce occurred in this state AND both parties are New York residents at the time the action is commenced
5. If you and your spouse were married outside of New York AND you never lived together as husband and wife in this state AND the grounds for divorce did not occur in this state: Either you or your spouse must presently be a resident of New York State AND have resided continuously in the state for at least two years prior tothe commencement of the action.

If you have any questions regarding how to determine your residency; how to determine where the grounds for your divorce occurred; or any other legal issue regarding divorce law, please call Danziger & Mangold and ask to consult with one of our attorneys.

Many people believe that financial stress is the number one reason why couples divorce.  But divorce rates have actually declined during our recent recession.  Although you may find this fact odd, a decrease in divorce rates during economic recessions is actually a trend.  Divorce rates decreased during the Great Depression, the 1990-1991 recession, as well as the most recent recession.  In fact, economists regularly predict a decline in the divorce rate during recessions and spikes in the divorce rate during times of economic improvement.

So why do divorce rates decrease during recessions?  Do divorce rates decrease because couples are willing to do more to make their marriages work during times of economic hardship?  Many economists and divorce lawyers speculate that divorce rates decrease during recessions because couples can’t afford divorces during difficult economic times.  Rationales for postponing a divorce include waiting until married couples can find someone to buy their house and waiting until couples can accrue enough assets individually so that they can live separately without too much hardship.  As a result of postponing divorces, some divorce lawyers suggest that many couples remain stuck in failing marriages and that prolonging the lifetime of the marriage is  unlikely to repair a deteriorating marriage.

Will the divorce rate spike when the U.S. economy gets back on track?  Recently, some economists have questioned the likelihood of a spike because of the results of a National Study that have surfaced. According to the National Marriage Project at the University of Virginia, while the recent recession has both brought considerable stress to some couples, it has also strengthened marriages.  Data shows that while an increase in economic stress directly correlates to a decrease in the happiness couples experience, 82% of respondents reported being happy in their marriage during this recession.  Moreover, 3 in 10 respondents stated that the stress of the economic recession had actually “deepened” their commitment to marriage, and 38% percent of couples who had been considering divorce prior to the recession, put their plans of getting divorced aside after their finances improved.  The author of the study suggested that a possible reason for the reconnection of couples during a recession is that in the face of tough times, while some relationships spiral downwards, others prove to be resilient and become stronger.

Of course every marriage reacts differently to financial hardship.  However, studies seem to indicate that generally speaking, divorce rates go down during recessions and rates go up when the economy is healthy.

A recent case demonstrates that your activities on Facebook, Twitter, and other social media websites can have a substantial impact on your divorce or family law matter.

Richmond County Supreme Court Justice, Catherine DiDomenico, held that an ex-wife’s previous temporary spousal support award of $850 a month was to be reduced to $400 a month.  The Court’s original award of $850 a month for support was based on the Court’s finding that the ex-wife was unable to work due to injuries she suffered in a car accident.  However, her ex-husband went back to the Court with pictures of his ex-wife belly dancing, as well as posts stating that she had been dancing every day for years.  Although the ex-wife contested the pictures by stating that she wasn’t the one belly dancing and was merely standing by her friend, the Court did not buy her story.  To make matters worse for the ex-wife, she also stated in Court that her doctor prescribed belly dancing as a form of physical therapy, but then her doctor denied this on the stand.   The ex-wife not only received less than half of the support she was originally awarded, but the Court also ordered her to pay for her ex-husband’s attorney fees!

What is the moral of the story?  Use discretion and proceed with caution if you can’t live without Facebook or Twitter.  If you are uncertain about the appropriateness of a post, err on the side of caution and resist the temptation to post the questionable content.  Also, if you are willing and able, divorce your Facebook and Twitter when you are planning on divorcing your spouse!

Just as the story above depicted, anything you post or upload can be used as evidence against you in a variety of matrimonial and family law proceedings.  The rationale behind the admissibility of Facebook posts and the like is fairly simple.  We all know that communications and pictures on these sites are posted for the entire world to see, which includes your spouse or ex-spouse, his or her lawyer, and the Courts.  It should be noted that communications and pictures on social networking sites can be submitted as evidence in child custody, spousal support, and property settlement disputes that accompany divorce proceedings.  Obviously pictures of you using drugs or alcohol can be used against you in a child custody proceeding.  Moreover, antagonistic comments towards your spouse or ex-spouse may have relevance in a divorce proceeding.   In addition, posts concerning your new job, recent purchases, and recent vacations can be used when determining spousal support and child support.  Even mere statements that you post online that contradict statements that you make in court, can be used against you to demonstrate that you are not trustworthy.

If you have any questions or concerns regarding your matrimonial or family law case and social networking, contact Danziger & Mangold LLP and ask to speak to one of our attorneys.

In the fall of 2010, former Governor Paterson exclaimed with relief that New York has finally joined the 21st century, following the rest of America, by adopting a No-Fault Divorce law.  So why was the former Governor happy about New York’s No-Fault Law?  A No-Fault Divorce enables a married couple to obtain a divorce without placing blame or fault on one of the spouses for the failure of the marriage.  Moreover, some legal experts in the matrimonial field assert that the No-Fault Divorce law will make breaking up “easier” to do.

How can getting a divorce be easy?  What does No-Fault Divorce mean to you from a practical standpoint?  Until 2010, if you were seeking a divorce you had three options.  Your first option was to establish fault against your spouse, which meant proving cruel and inhuman treatment, abandonment for a continuous period of one year or more, imprisonment for more than three years subsequent to the marriage, or adultery.  Your second option was to get separated from your spouse via a court judgment or a separation agreement and use the separation to serve as the basis of your divorce.  Note that if you secured a separation, you also had to live apart from your spouse for one year before the separation could serve as the basis of your divorce.  Your last option was for you and your spouse to agree to an uncontested divorce in which one of you would be compelled to admit to one of the fault based grounds for divorce.   These options are still available under New York law, but the legislature has added the No-Fault option.

No-Fault Divorce will allow you or your spouse an easier route to getting a divorce judgment because you won’t have to engage in finger pointing, admissions of fault, or a separation order to obtain a judgment of divorce.  Instead, you can get a divorce by simply proving that the marriage has broken down irretrievably for a period of at least six months.  An irretrievable breakdown of a marriage may be easily established if both spouses state that their marriage is irretrievably broken or one spouse states that the marriage is irretrievably broken and the other spouse doesn’t deny that it is broken.  Factors a court may look at when considering whether the marriage is irretrievably broken are whether there is a conflict of personality, an unreciprocated concern for the emotional needs of the spouses, the marriage is characterized by financial difficulties, there has been a long physical separation, a difference of interests, resentment, distrust, constant arguing, or irreversible antagonistic feelings between the spouses.  Nonetheless, because the applicable statute is recent, it is unclear what happens if one spouse challenges and denies that the marriage is  irretrievably broken.  One case,  Strack v Strack, ruled that such case may be sent to trial for the fact finder (usually a judge) to decide whether or not such marriage is irretrievably broken.  However, another case, A.C. v. D.R., ruled that there are no defenses to a No-Fault Divorce and that simply one spouse’s sworn affidavit stating that the marriage is irretrievably broken is enough to grant a divorce.  Therefore, the law is still taking shape in New York and over time the appellate Courts will decide whether a party can challenge their spouse’s claim that the marriage is irretrievably broken in a Court of Law.

One should keep in mind, however, that in order to be granted a No-Fault divorce in New York, issues of the equitable distribution of marital property, spousal support, child support, the payment of counsel and experts’ fees, as well as custody and visitation must first be resolved by the parties or determined by the court.  Therefore, while No-Fault divorces may make it easier and faster for you to prove that you should be granted a divorce, the issues of child custody, child support, equitable distribution of property, and attorney fees can sometimes be emotional, time-consuming, and expensive issues to resolve.  It should be noted that the No-Fault Divorce law does not eliminate all finger-pointing and blame in the divorce process.  Unless you and your spouse can resolve these issues amongst yourselves, don’t expect divorce proceedings to be easy, fast, or inexpensive. On the bright side, however, No-Fault Divorces will usually enable you to use more of your resources and energy on these important issues instead of on the issue of whether your marriage should end.