Frequently Asked Questions (FAQs)

Divorce and Family Law Questions

Answers to your Questions

Since 1995, Attorney Sue Daubner has limited her practice to assisting families attempting to navigate the rough waters of separation, divorce, child custody, and child support. You can read more about Sue here.

Filing a summons at the New York Supreme Court starts an action for divorce. The summons must then be served personally on your spouse and an affidavit of personal service must be filed in court within 120 days after the summons is served. If you start the divorce action by filing and then serving a summons without a complaint, your spouse has 20 days to serve a “notice of appearance” upon you. If you start the divorce action by serving a summons and a verified complaint, your spouse has 20 days to serve his or her answer to your complaint. The answer may also contain counterclaims against you. You have 20 days to reply to the counterclaims.

New York has six grounds for divorce. Four of the “grounds” are based on the “fault” of one of the spouses:

An action for divorce may be sought only when any of the following conditions of New York residency apply:

A simple uncontested divorce can be processed by the Supreme Court within 60 days. A complex contested divorce action, involving contested custody, support, valuation and property issues can take from one to three years.

In New York State, property is distributed through “equitable distribution”. Property is first classified as either “separate” or “marital”. Generally, property acquired prior to the marriage is separate property and property acquired during the marriage is marital property. There are exceptions to these general rules. New York’s property law is more complicated than most states and it is imperative that you hire an attorney who understands the vast exceptions under marriage acquired during the life of the marriage.

According to New York law, either spouse may be awarded maintenance, without regard to marital fault, based on consideration of the following factors:

The cost of the divorce is directly related to the complexity of the case and to the extent to which the issues are contested. An uncontested divorce will cost much less than a contested divorce. An attorney will generally require the payment of a retainer at the outset of the representation. You can expect to be billed on an hourly basis for work performed in the course of the representation. If the initial retainer was insufficient to cover all the legal fees and costs, you will receive periodic invoices, which you are expected to pay promptly. In addition to paying your attorney, you will be responsible to pay court-filing fees and the other costs incurred in the course of the divorce.

Emancipation is a term used in relation to child support. If a child is emancipated, through various tests, the child support obligation ceases, by order of the Court. Under New York Law, a child is emancipated if one of the following

No.

Annulments are handled very similarly to a divorce with regard to the filing of pleadings and forms, however, the grounds are stricter. To get an annulment, you must prove that the marriage is voidable, so as to request the Court to nullify the marriage. The following are grounds to prove a marriage is voidable:

Yes, if the Plaintiff complaining spouse, proves the grounds for divorce, and the grounds are determined by the Judge to be sufficient under the law.

New York State allows for parents who have remarried to file an adoption, asking the Court to allow their new spouse to adopt his or her child(ren). The other parent may voluntarily sign a sworn affidavit if they desire to voluntarily surrender their parental rights. If that parent will not sign such a document, the adoption become contested and must go before a judge to render a decision. The reasons for an adoption by another person (who requests to take over the rights of another parent) include the following: the other parent has been absent from the life of the child for at least 6 months (abandonment), a parent has been adjudicated as having permanently neglected/abused his or her child(ren), or other extreme circumstances that would be contrary to the child’s best interest.

Please see our webpage on Divorce / Family Law for more information.




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