Divorce Lawyer in Buffalo
There are only a few differences between a legal separation and a divorce as each should comprehensively address all outstanding issues of the marriage ranging from custody and access issues, spousal and child support issues and distribution of property and debts.
At the conclusion of a legal separation, the parties remain married. As a result, neither is allowed to marry another person, however, the parties are permitted to continue to file a married joint income tax return to the extent they wish and, in many circumstances, the "family" relationship is preserved such that one spouse can continue to be carried on his/her spouse's family health insurance plan.
The result of a divorce is essentially the opposite. The parties may not file a married joint income tax return and the parties are no longer part of the same family for health insurance purposes; however, each is free to remarry.
Divorce/separation is seldom an easy process but we are here to guide our clients. Depending upon the relationship between the parties or level of complexity of the case, this process can impose a large emotional and financial burden for the couples going through it. At HoganWillig we offer the experience and efficiency needed to get through this difficult time in as efficient a manner as possible.
If you are in need of a divorce or separation, HoganWillig can help negotiate a settlement, assist you with your legal paperwork, or represent your interests in court to ensure that you are treated fairly and equitably. We will be with you from beginning to end. Our experienced attorneys will guide you through the array of legal choices and arrive at a result designed to be most beneficial to you and your children.
Divorce Frequently Asked Questions:
- What are the grounds for a divorce?
- How long must I reside in New York before I can begin my divorce action?
- How long will it take to get divorced?
- What are the laws in New York regarding property distribution?
Effective October 12, 2010, New York State has seven grounds for divorce. Four of the "grounds" are based on the "fault" of one of the parties due to cruel and inhuman treatment, abandonment for one or more years, imprisonment for three or more years, and adultery. The other grounds, one year of living apart under a separation judgment granted by a Court, or under a separation agreement signed by the parties, enable us to obtain a "no-fault" divorce, in which neither spouse is judged to be at fault, provided that the spouse seeking the divorce has substantially complied with the provisions of the judgment or agreement. The parties also may obtain a no-fault divorce to the extent that one party alleges that the relationship between the parties has broken down irretrievably for a period of at least six months.
An action for divorce may be maintained only when:
- The husband and wife were married in New York, and either of them is a resident of New York when the action is begun and has been a resident of New York for a continuous period of one year immediately before the commencement of the action, or
- The parties have resided in New York as husband and wife, and either of them is a resident of New York when the action is begun and has been a resident of New York for a continuous period of one year immediately preceding the beginning of the action, or
- The grounds for divorce occurred in New York, and either party has been a resident of New York for a continuous period of at least one year immediately before the beginning of the action, or
- The grounds for divorce occurred in New York, and both parties are residents of New York at the time of the commencement of the action, or
- Either spouse has been a resident of New York for a continuous period of at least two years immediately preceding the commencement of the action.
The length of time involved to obtain a divorce or separation from start to finish, as well as its cost, is heavily dependent upon the level of cooperation and agreeability of the parties in addition to the complexity of the case. As a result, a matter may be completed as quickly as a few months or, unfortunately, as long as a few years. In our office, the cost of a case ultimately is a function of the level of involvement of the attorneys and our support staff, as all of our matters are handled on an hourly basis.
In New York State, a property is distributed through "equitable distribution." A property is first classified as either "separate" or "marital." New York State Domestic Relations Law defines separate property as (1) property acquired by the other party prior to the marriage; (2) property acquired by the other party by bequest, devise, descent or gift from a party other than the spouse; (3) property acquired by the other party as a result of compensation for personal injuries, and; (4) property acquired in exchange for or the increased value of separate property (non-marital property), except to the extent that such appreciation is due to the contributions and efforts of the other spouse. There have also been case law developments pertaining to the determination of separate property which add meaning to these basic definitions. Separate property is not subject to equitable distribution between divorcing or separating parties.
Relative to the equitable distribution of marital assets and liabilities, it is important to know that equitable does not necessarily mean an equal division and our Domestic Relations Law has set forth a number of factors that should be considered by the parties or a court in determining what is equitable. Those factors include:
- income and property of the spouses, including any marital property divided as a result of the dissolution of marriage
- any transfer of property made in anticipation of divorce
- duration of the marriage
- wasteful dissipation of marital property
- contributions of each spouse to the marriage and the career of the other spouse, including services rendered in homemaking, childcare, education, and career-building of the other spouse.
- tax consequences to each spouse
- any custodial and child support responsibilities
- the ability of the spouse seeking support to become self-supporting and the time and training necessary
- any reduced lifetime earning capacity as the result of having foregone or delayed education, training, employment, or career opportunities during the marriage
- whether the spouse from whom maintenance is sought has sufficient property and income to provide maintenance for the other spouse
- age and health of both spouses
- present and future earning capacities of both spouses
- any other factors the court deems just and equitable