I need a divorce

Your First Steps in Initiating a Divorce

Filing for divorce is a complex and emotional decision, but with the proper guidance, a client should understand the basics of divorce proceedings. At HoganWillig, communication between a client and their attorney is of the utmost importance. An attorney will advise their client on moving forward and making the divorce process as smooth as possible.

In New York, one of the first things an individual will need to do is establish a residency requirement. A residency requirement determines the jurisdiction. There are a few ways that a person can fulfill the residency requirement for New York. These include:

  • At least one spouse must be a resident of New York for at least two years
  • Both spouses are residents when the divorce has been filed
  • They lived in New York as a married couple

In addition to fulfilling the residency requirement, the individual must cite grounds for divorce. This is simply the reason that the spouse filing is doing so. 

After contacting a divorce attorney and fulfilling the residency requirement, the law obligates you to notify your spouse that you are filing for divorce. You will present your spouse with a Summons with Notice. How this step is handled depends on the client’s relationship with their spouse. 

If a frank, in-person discussion is possible, this can be an acceptable way to notify your spouse of your intentions. It’s probably best to avoid a “surprise” situation. If you think a face-to-face discussion would be acrimonious or even dangerous, let your attorney send a notice in the mail, including an affidavit, or have a process server deliver the summons in person and provide your spouse with an affidavit to file with the county clerk. You could even have your spouse sign an affidavit at your attorney’s office.

Things to Know

What should I bring to my first meeting with my attorney?

Don’t worry too much about what to bring to an initial consultation with your attorney. You could bring tax returns, pay stubs, other income information, quotes on assets and investments so that your attorney can start to make calculations about the equitable distribution of property, spousal support, and child support.

If you don’t want to make full disclosure of all that information, that’s fine too. You get to set the pace of your divorce at this point. It would be fine to come into your first meeting with nothing at all, and simply hold a discussion before you move forward with an attorney.

How do I respond if I’ve been served divorce papers?

The first step is to determine what type of documents you now have in front of you.

A Summons with Notice requires you to put in a notice of appearance and retain an attorney within 20 days.

An Order to Show Cause has a different time frame; in this case, you’ll have to file certain documents before you appear in court.

A notice from Family Court also will have a different time frame – and, of course, require you to show up at a different location.

If you’ve been served with any kind of divorce papers, set up an appointment with an attorney, get into his or her office as quickly as possible, and prepare to respond within the specified time frame.

How Does Child And Spousal Support For Divorce In New York Work?

Family Court presides over matters involving the child and spousal support.

Child Support – In New York, both parents must provide child support until the child reaches 21 years of age. The parent who is charged with physical custody of the child most of the time, can receive child support from the non-custodial parent irrespective of whether the custodial parent has the means to support the child on their own.  If the child is in foster care, both parents must pay child support.

Spousal Support – While married, couples in New York must financially support each other. The support is called spousal support. As long as the couple is married, spousal support can continue indefinitely. When spouses are divorced, the support one spouse pays to the other is called maintenance.

How is Custody Handled in New York?

Family Court Provides a Custody Order – this order assigns the responsibility of caring for and raising a child to the parents or a third party. Custody is either legal or physical and the court has the right to make decisions about custody up until a child turns eighteen years of age. In the absence of a court order, both parents enjoy equal rights to legal and physical custody.

Legal custody refers to the authority to make decisions involving a child’s medical care and religion. Legal custody may be joint or sole. If a Court grants joint custody, parents make these major life decisions together.

The parent with physical custody is responsible for the physical care and supervision of the child. Physical custody may be joint or sole, joint implies the child lives with each parent fifty percent of the time. Sole custody is when the child lives with one parent most of the time, and the other parent will generally have some sort of visitation arrangement.

 

What is the difference between fault-based and no-fault divorce?

The fault grounds for divorce in New York include:

  • Adultery
  • Abandonment for a year or more
  • Imprisonment for 3 years or more
  • Cruelty or inhuman treatment like physical or mental abuse

No-fault New York divorce can be based on any of the grounds as follows:

  • Your marriage has suffered an “irretrievable breakdown” for at least 6 months i.e. your spouse and you cannot get along anymore.
  • Living separately and apart for a year or more after a judgment of legal separation.
  • Living separately and apart for a year or more after a separation agreement.

Related Attorneys

How Can We Help You?