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Divorce in New York
The Legal Process, Your Rights, and What to Expert
By Michael D. Stutman
Addicus Books, Inc.Copyright © 2013 Michael D. Stutman
All rights reserved.
Understanding the Divorce Process
At a time when your life can feel like it's in utter chaos, sometimes the smallest bit of predictability can bring a sense of comfort. The outcome of many aspects of your divorce may be unknown, driving up your fear and anxiety. But there is one part of your divorce that does have some measure of predictability, and that is the divorce process itself.
Most divorces proceed in a step-by-step manner. Despite the uniqueness of your divorce, you can generally count on one phase of your divorce following the next. Sometimes just realizing you are completing stages and moving forward with your divorce can reassure you that it won't go on forever.
It's important for you to develop a basic understanding of the divorce process. This will lower your anxiety when your attorney starts talking about "depositions" or "going to trial" and you feel your heart start pounding in fear. A basic understanding can reduce your frustration about the length of the process because you understand why each step is needed. This knowledge will support you to begin preparing for what comes next.
Most importantly, understanding the divorce process will make your experience of the entire divorce easier.
1.1 Must I have an attorney to get a divorce in New York?
You are not required to have an attorney to obtain a divorce in New York. However, if your case involves children, maintenance, significant property, or debts, you should avoid proceeding on your own. Life in New York can be a complicated web of legal relationships with landlords, employers, insurance companies, creditors, and, of course, taxes. A lawyer practicing in New York will be able to help you navigate these waters.
If your divorce doesn't involve any of these issues, you can contact your county bar association, which may have clinics for the self-represented and which can provide documents and instructions that are helpful in the simplest of divorce cases. A person who proceeds in a legal matter without a lawyer is referred to as being pro se (pronounced pro-say).
If you are considering proceeding without an attorney, at a minimum have an initial consultation with an attorney to discuss your rights and duties under the law. You may have certain rights or obligations about which you are unaware. Meeting with a lawyer can help you decide whether to proceed on your own.
1.2 What is my first step?
If you decide to use an attorney, how do you find a lawyer who is right for you? The choice of an attorney is necessarily intertwined with another judgment you must make: Do you want to try for a mediated or negotiated settlement without going to court? If you believe that you and your spouse are capable of negotiating a settlement either directly between yourselves or through your attorneys, then your attorney should have negotiating skills and the knowledge of New York divorce law and applicable tax law needed to draft a technically sound agreement. The lawyer's litigation experience and ability are less important. However, if you believe that a "war" will be necessary to get satisfactory results with your spouse, or if your spouse has already hired a "bomber" as his or her attorney, then you may need a good courtroom lawyer to protect your interests effectively.
Choosing an Attorney
Before you select a lawyer you must assess your expectations of the attorney-client relationship. After all, you are buying into a highly personal, although temporary, partnership where mutual confidence is a key consideration. This relationship is highly individualized, so it is worth looking around before deciding on the attorney you will hire. Some lawyers can quickly make a client feel secure and comfortable. Others may not be as personable but may be extremely experienced and imaginative in looking for solutions to your particular problems.
Do you expect the attorney to help you decide whether to divorce, or to act as a marriage counselor? If so, you probably are making a mistake. Most lawyers are not qualified to aid you in this way unless they also are trained as marital therapists. Lawyers tend to be concerned primarily with getting the legal process started, documenting your financial situation, readying forms for filing, and developing effective strategies. These are the tasks they have been trained to do.
Look for a lawyer whose practice is involved principally with marital dissolution work. A lawyer's fine reputation in immigration law, for example, is largely irrelevant to your needs. Ask if your potential attorney has been an active member of family law committees in local, state, or national bar associations or is a member of the American Academy of Matrimonial Lawyers, a group that admits only attorneys primarily working in family law. Also, make certain your divorce lawyer has experience with the courts and the legal community in your area. But your own gut reaction, after you have gathered the necessary facts about the lawyer, is your most important guide in finding the right attorney for you.
Reputation and Recommendations: Key Questions
Most people choose lawyers through their reputations or by asking for recommendations from persons whose opinions they value. Divorced friends are a good source of information, particularly if their cases were resolved satisfactorily. Use caution, however, and evaluate your friend's lavish praise (or angry denunciation, for that matter). Inquire closely about those qualities that your friend either admired or disliked in the attorney. You may want to ask some of the following questions:
Did the attorney's efforts interfere with or facilitate your friend's relations with the former spouse and their children?
Did your friend feel personally secure and comfortable with the attorney?
Did your friend come away from the process feeling informed?
Did your friend feel that the attorney's fees and the results of the divorce trial or settlement were fair?
If you follow this route, be sure to see the lawyer to whom you were referred, not his or her associate or partner. Remember that you may want to interview several lawyers before deciding on one who suits you. This is your right. You are the "employer," and in such a critical matter as divorce it is essential that you find an attorney with whom you can communicate and in whom you can place your trust.
If you are referred to a lawyer who is a stranger to you, you can sometimes get background information about the lawyer by consulting reputable directories such as Martindale-Hubbell and Best Lawyers in America.
The Initial Conference: A Checklist
During the initial conference you should ask the lawyer questions as well as give information. You need information to determine whether this attorney should handle your case. Your basic standard for choosing will be your own gut reaction to the lawyer personally and as a professional, but answers to the following questions may assist you in formulating or reinforcing that reaction.
What are the attorney's credentials?
Having attended a well-known law school is no guarantee of outstanding ability; however, it helps to know the lawyer's academic background.
Does the lawyer belong to the city or county bar association? This may indicate respect among peers and suggest respect among the local judges.
You can check to see on which sections or committees of the bar association the lawyer has served. If he or she has served on sections or committees related to family law, such as the family law sections or the taxation section, or if the lawyer is a member of the American Academy of Matrimonial Lawyers, chances are you're dealing with one of the more committed lawyers in your area.
Does your lawyer appear on panels or lectures sponsored by law-related organizations? This can also be an indicator of respect among peers and judges.
What portion of the lawyer's time is spent in family law matters?
Many lawyers, particularly in the New York City area and in other major cities, now deal almost exclusively in divorce cases.
Is the lawyer willing to discuss the attitudes of local judges concerning issues relevant to your case?
This would be a good time to discuss general strategies for your case. Again, the relationship between client and lawyer is similar to that of "employer" and "employee." You are the employer, and you have an absolute right to fire your attorney at any time, even without cause. Note, however, that when you change lawyers you will duplicate some of your expenses up to that date because your new attorney will have to become familiar with the facts of your case, and you will likely have to pay for the time this will take.
Communicating with Your Attorney
There are a number of responsibilities that you as a client should observe and certain realities you must recognize if the lawyer is to be as effective and as efficient an advocate as he or she can be:
Realize that your lawyer cannot guarantee results. Although the lawyer can, and probably will, make predictions about the outcome of your case, the actual outcome of negotiations or litigation may turn on very complex factors.
Always keep your lawyer informed of any new developments that might affect your cause.
Take your lawyer's advice, or get another lawyer. You are wasting your money and the lawyer's time if you do not have confidence in the lawyer's special knowledge and skills.
Be utterly candid with your lawyer; tell the truth. Legal advice is worthless if based on faulty or partial information. Tell your lawyer every fact that is relevant to the situation, being careful to include all facts that do not appear to be in your favor. Lawyers can plan effective strategies around adverse facts, but only if they are aware of them.
1.3 What information should I take with me to the first meeting with my attorney?
Attorneys differ on the amount of information they like to see at an initial consultation. When you make the initial appointment, ask what documents the attorney would like to see. If a court proceeding, either a divorce or a proceeding where an order of protection is being sought, has already been initiated by either you or your spouse, it is important to bring copies of any court documents.
If you have a prenuptial or postnuptial agreement with your spouse, that is another important document for you to bring at the outset of your case.
If you intend to ask for support, either for yourself or for children, documents evidencing income of both you and your spouse will also be useful. These might include:
Recent pay stubs
Individual and business tax returns,W-2s, and 1099s
Bank statements showing deposits
A recent loan application
A statement of your monthly budget
Your attorney may ask you to complete a questionnaire at the time of your first meeting. When you schedule your first meeting, ask if a questionnaire will be completed. If so, ask whether it is possible to do this in advance of your meeting. This can allow you to provide more complete information and to make the most of your appointment time with the lawyer.
If your situation is urgent or you do not have access to these documents, don't let it stop you from scheduling your appointment with an attorney. In the beginning, prompt legal advice about your rights is often more important than having detailed financial information. Your attorney can explain to you the options for obtaining these financial records if they are not readily available to you.
1.4 What unfamiliar words might an attorney use at the first meeting?
Law has a language all its own, and attorneys sometimes lapse into "legalese," forgetting that nonlawyers may not recognize words used daily in the practice of law. Some words and phrases you might hear include:
Dissolution of marriage — The divorce
Plaintiff — Person who starts the legal process
Defendant — Person who did not start the legal process
Jurisdiction — Authority of a court to make rulings affecting a party
Service — Process of notifying a party about a legal filing
Discovery — Process during which each side provides information to the other
Divorce decree — The final order entered in a divorce
Never hesitate to ask your attorney the meaning of a term. Your complete understanding of your lawyer's advice is essential for you to partner with your advocate as effectively as possible.
Even if you are not yet ready to start a process for divorce, call to schedule an appointment to obtain information about protecting yourself and your children. Even if you are not planning to file for divorce soon, your spouse might be.
1.5 Is New York a no-fault state or do I need grounds for a divorce?
In October of 2010, New York became a no-fault divorce state. This means that for divorce cases that began after October of 2010, neither you nor your spouse is required to prove that the other is "at fault" in order to be granted a divorce. Factors such as infidelity, cruelty, or abandonment are not necessary to receive a divorce in New York. Rather, it is necessary to prove only that the marriage is "irretrievably broken" to have it dissolved.
The testimony of either you or your spouse is likely to be sufficient evidence for the court to rule that the marriage should be dissolved. This testimony, usually given by the spouse who filed for the divorce, will state that the marriage is irretrievably broken and was so broken for more than six months before the divorce proceeding was begun.
1.6 Do I have to get divorced in the same state I married in?
No. Regardless of where you were married, you may seek a divorce in New York if the jurisdictional requirements of residency are met.
1.7 How long do I have to have lived in New York to get a divorce in the state?
Either you or your spouse must meet certain residency requirements depending on the circumstances. For example, if you were married in New York, one of you needs to be a resident for a year before starting the divorce. Or, if the two of you had a residence in the state as husband and wife at any time and one of you had been a resident for a year before starting to divorce, you are eligible to obtain a divorce in New York. You are also eligible if either of you had been a resident for two years before starting the action. There is one section providing that if you reside in New York when "the cause of action" arises you can file at that time.
If neither party meets the residency requirement, other legal options are available for your protection. If you do not meet the one-year residency requirement, talk to your attorney about options such as a legal separation, a petition for custody and support order, or a protection order.
1.8 My spouse has told me she will never "give me" a divorce. Can I get one in New York anyway?
Yes. New York does not require that your spouse "agree to" a divorce. If your spouse threatens to "not give you a divorce," know that in New York this is an idle threat without any basis in the law.
Under New York law, to obtain a divorce you must be able to prove only that your marriage is "irretrievably broken." Evidence of this will be your testimony on the witness stand. In short, it is not necessary to have your spouse agree to the divorce or to allege the specific difficulties that arose during the marriage to obtain a divorce in New York.
1.9 Can I divorce my spouse in New York if he or she lives in another state?
Provided you have met the residency requirements for living in New York, you can file for divorce in the state even if your spouse lives in another state.
Discuss with your attorney the facts that will need to be proven and the steps necessary to give your spouse proper notice to ensure that the court will have jurisdiction over your spouse. Your attorney can counsel you on whether it is possible to proceed with the divorce. Under certain circumstances, you might only be able to obtain a divorce, that is a decree ending the marriage, but not necessarily distributing property; determining support for you, your spouse, or your children; or determining child custody. A simple divorce will cut off your right to inherit a share of your spouse's estate (and vice versa), it will change your tax filing status, it will impact health insurance, and it may affect certain personal retirement plan rights and eligibility.
Excerpted from Divorce in New York by Michael D. Stutman. Copyright © 2013 Michael D. Stutman. Excerpted by permission of Addicus Books, Inc..
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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