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:
- cruel and inhuman treatment,
- abandonment for one or more years, · imprisonment for three or more years, and · adultery.
- The two other grounds enable you to obtain a “no-fault” divorce. The spouse seeking the divorce must substantially comply with the provisions of the separation judgment or separation agreement. These two other grounds are:
- one year of living apart under a separation judgment granted by a Court, or
- one year of living apart under a separation agreement signed by the parties.
An action for divorce may be sought only when any of the following conditions of New York residency apply:
- You and your spouse were married in New York, and either of you is a resident of New York when the divorce action is started and has been a resident of New York for a continuous period of one year immediately before the commencement of the divorce action,
- You and your spouse have resided in New York as husband and wife, and either of you is a resident of New York when the divorce action is started and has been a resident of New York for a continuous period of one year immediately preceding the beginning of the divorce action,
- The grounds for divorce occurred in New York, and either you or your spouse has been a resident of New York for a continuous period of at least one year immediately before the beginning of the divorce action,
- The grounds for divorce occurred in New York, and both you and your spouse are residents of New York at the time of the commencement of the divorce action, or
- Either you or your spouse has been a resident of New York for a continuous period of at least two years immediately preceding the commencement of the divorce action.
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:
- 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;
- contribution 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;
- 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; and
- any other factors the court deems just and equitable.
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
- A child attains age twenty-one (21) years.
- A child marries, whether or not such marriage may be void, voidable or may subsequently terminate by death, divorce, annulment, or dissolution, or in any other manner.
- A child cohabits with an unrelated person of the opposite sex out of the parent’s household.
- A child enters the armed forces of the United States or any other country or political entity.
- A child attains the age of eighteen (18) years and becomes full-time employed; except that full-time summer employment undertaken by a child while such child is still engaged as a full-time college student shall not terminate the child support obligations established in this agreement.
- A child leaves the home to avoid following reasonable parental/household rules.
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:
- One or both of the parties has a former marriage that was not dissolved through a divorce or annulment.
- One or both of the parties are under the age of consent.
- One or both of the parties was mentally retarded or mentally ill (if a party is incapable of consenting because they are unable to understand).
- One of the parties was physically unable to enter the marriage state.
- Where consent of the marriage was obtained by force, duress or fraud.
- Where one of the parties has been incurably insane for five years.
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.
