Q: How long does a divorce usually take?
A: Depending on a number of circumstances in your situation, such as the amount of property that has to be distributed, whether or not you have children, whether the matter is contested or uncontested, your divorce can take anywhere from a couple of months to a couple of years. Each case varies and it is crucial that you have experienced legal representation throughout this process. At Lubov Stark LLC we will devise the most effective strategy to reach your goals in the shortest most financially sound manner.
Q: What if my spouse ignores being served with my divorce action?
A: When a person is served with a Summons for divorce in New York State, he or she has 20 (sometimes 30) days to appear in the action by serving an appropriate legal response. If he/she does not, that person is in default. The person who commenced the divorce action may proceed to court in the absence of the defaulting party to obtain a divorce without the other spouse’s participation.
Q: What are the Grounds for a Divorce?
A: Until recently, New York State was the only “grounds” State in the country. Now, New York State has no fault divorce, based upon on irretrievable breakdown of the marriage for a period of six months or more. Prior to the passage of the “No Fault” Statute, you needed to claim a reason or ground under the New York Domestic Relations Law in order to request a divorce or other marital relief from your spouse.
The grounds for a divorce in New York State are —
- No fault divorce – irretrievable break down of the relationship for more than 6 months.
- Cruel and inhuman treatment
- Abandonment (physical or constructive) for a period of one or more years
- Confinement in prison for a period of three or more consecutive years after marriage
- Living separate and apart for a period of one year or longer pursuant to a Decree or Judgment of Separation and irreconcilable differences
- Living separate and apart for a period of one year or longer pursuant to a written agreement of separation
Most people agree to grounds to avoid the cost of a grounds trial, especially now that there is a No Fault provision in the law. For clients who cannot agree and do not want to proceed under the No Fault provision, the Court usually holds a grounds trial before any financial discovery commences.
Upon the purchase of the Summons with Notice for Divorce, an automatic restraining order applies to the Plaintiff in the action. Upon the service of the Summons with Notice for Divorce upon the Defendant, the automatic restraining order binds the defendant as well.
Q: What are the requirements for filing for Divorce in New York State?
A: The requirements for filing a petition for divorce vary for each state. There are residency and domicile requirements. That means one of the parties must have been a resident of the state for a specified period of time prior to the filing of the petition. In New York, one of the following situations must apply in order for New York to have jurisdiction over your divorce:
- Either the Plaintiff or Defendant must have resided in New York State for a continuous period of at least two years immediately preceding the commencement of the divorce action;
- Either the Plaintiff or Defendant resided in New York State on the date of commencement of this divorce action and for a continuous period of one year immediately preceding the commencement of this divorce action; AND the parties were married in New York State or the parties have resided as marriage people in New York State;
- The cause of action occurred in New York State and either the Plaintiff or Defendant resided in New York State for a continuous period of one year immediately preceding the commencement of this divorce action; OR
- The cause of action occurred in New York State and both parties were residents at the time of commencement of the divorce action.
Q: If I file for divorce, does that automatically include asking for child support, alimony, and other financial compensation? What financial support am I entitled to during the divorce process?
A: Yes. When you file an action for divorce, you must state the relief that you are seeking to be awarded by the Court. Financial support pending during the divorce proceeding is referred to as “pendente lite” or interim relief. Such relief is made by application to the Court requesting applicable child support, maintenance (alimony) and payments to third parties and access to the children. It also provides a method for allocating each party’s contribution to the overall financial needs for the family.
Q: What is “Equitable Distribution” of marital assets?
A: Equitable distribution does not mean equal. It means what the Court decides or the parties agree to as being equitable under their circumstances. The Court determines what assets are marital, what assets are separate or if there is a separate property component to any marital asset. Assets include, but are not limited to, businesses whether owned independently or jointly; brokerage accounts; bank accounts; cash surrender values of insurance policies; stock options; and real estate interests.
Q: How do courts determine who gets custody, access, and all the other issues surrounding the children?
A: Seeking custody is part of your divorce action. It is included as ancillary relief in the divorce action. There are two components of custody: legal custody and physical custody. Legal Custody refers to which parent makes the decisions for the Child and can act on the Child’s best interest in regards to third parties. Legal Custody can be joint (both parents) or sole legal custody. In some cases, the Court may award one parent decision making authority in one sphere of the Child’s life, which awarding the other parent decision making in another sphere of the Child’s life. Joint Legal Custody cannot be awarded by the Court, it is only by Agreement of the parties. Physical custody refers to whom the children primarily reside with. Parental Access or Visitation concerns physical custody and governs how much actual time is spent with each parent. If the parties are unable to agree upon Legal and/or Physical Custody, the Court may appoint an Attorney for the Child and/or order a forensic psychological or psychiatric evaluation of the entire family, depending on the circumstances.
Q: Will the mother automatically be awarded custody of the children in a divorce?
A: The court’s main concern is the best interests of the children, which means neither parent has an advantage over the other in custody cases. The Judge will consider a number of factors before making a decision, including, but not limited to, the age of the children, their mental and physical health, the parents’ respective lifestyles, each parents’ ability to provide for the children emotionally and financially. After evaluating various aspects of the family’s situation, the Judge will rule on which parent they believe will be a more beneficial custodian of the children.
Q: When I divorced, my ex-spouse and I entered into an Agreement resolving our financial and custodial issues. My ex-spouse is not living up to his/her end of the financial agreement, can I stop him/her from seeing our child until I am paid what is owed to me?
A: You cannot suspend visitation unilaterally due to the failure of your ex-spouse to live up to the terms of your Financial Agreement or Court Order. Only a court can suspend access. Financial matters are not related to Visitation. If an ex-spouse is not complying with the terms of an Agreement or Judgment of Divorce, then you have to request that the Court (Supreme Court or Family Court) compel that person to comply. This is done by a written application to the Court. You can use various enforcement mechanisms to collect. If a default is willful, then contempt is an appropriate remedy.
Q: I am getting married and have significantly more assets than my fiance. I want a prenuptial agreement that will ensure that should our marriage not work out, that he/she cannot take my assets. How do I do that?
A: A Prenuptial Agreement must conform to statutory requirements, and so long as they do, such Agreements are enforceable under New York State laws. At Lubov Stark LLC have exceptional knowledge of negotiating and drafting Prenuptial Agreements that can protect your separate property assets, as well as any appreciation on those assets, and ensure the protection of your property. You can make any provisions in your prenuptial agreement, so long as both parties agree and the provision is not against public policy of the State of New York. You can also enter into a Postnuptial agreement and or Separation agreement with your spouse, if the circumstances of your marriage require it. These agreements are tailored to the facts of each case.