Common Questions
Seeking divorce or legal assistance for a family issue can often lead to a lot of complicated and messy situations. Questions may arise regarding child custody, property division, and other sensitive matters when considering any form of marital separation. Emotions can run high, and stress may provide additional quandaries for all people involved. At our firm, we have sought to offer answers to some of the most common concerns we receive from potential clients. If you have additional inquiries or worries, please do not hesitate to contact our office.
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Issues Related to Divorce and Family Law
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In New York, do I have to have grounds for divorce?There are six different grounds for divorce, four of which rely on "fault" from one of the spouses, while the other two are considered "no-fault" divorce. In the case of " fault ," one of the spouse must have either committed adultery, been cruel or treated their spouse inhumanely, have been imprisoned for at least three years or more, or abandoned their spouse for more than a year. These must be proven with substantial evidence before a judge will grant the divorce. With "no-fault" divorce situations, the spouses must have either lived apart according to a separation judgment or the marriage has irretrievably broken down for six months.
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How long is the divorce process?When dissolution of marriage cases occur, they can be very simple or extremely complicated depending on the willingness of both parties to come to an agreement on pertinent matters. If the couple can agree on an uncontested divorce it may only take up to a few months for it to be processed by the court. In cases where issues are complex regarding child custody, visitation, spousal support, property distribution and other matters, it can take up to a year or more to resolve all issues.
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Will I have to go to court?This depends greatly on the divorce proceeding and how complicated it gets. For simple divorce proceedings or legal separation agreements, there may just be paperwork to file, without a court appearance. Other times, a court proceeding may be required. However, this does not mean there will be a trial, as most cases do settle without the necessity of a trial. Essentially the more complex the issues are within your divorce, there is a greater likelihood that you will have to go to court on more than one occasion.
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Is it mandatory that I pay spousal support?This is contingent upon your income and the income of your ex-spouse. It is the court's objective to ensure that both spouses maintain their pre-divorce lifestyle as much as possible following a separation. In cases where one spouse makes the majority of the income in the marriage, it may be required that he or she makes spousal support payments at least until the other spouse can obtain a higher wage and sustain themselves. There are various factors that play into the court's decisions regarding spousal support, also known as maintenance, and these can be viewed here.
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Why is establishing paternity so important? Are there benefits?
Not only does every child have the right to having a relationship with their parents, determining paternity may prove to be extremely beneficial. As the father of a child, you will get the satisfaction of knowing you have a son or daughter with whom you can seek to support in all aspects. They will be able to understand who they are as a person by knowing both of their parents as they grow up.
Additionally it can help them monetarily so that they can grow up in a safe and healthy environment. Any health insurance, veteran's benefits or social security benefits can also be theirs depending on what you have that can be passed on to your children. For health reasons, if you have any pre-existing conditions there is always the possibility that it can be transferred to your child. Knowing all the possible medical issues that could be presented in your child's life could end up saving their life one day.
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Do I need an attorney?Obtaining a qualified lawyer that is knowledgeable regarding New York divorce and family laws is extremely important to the success of your case. While some individuals may seek to represent themselves in court, having someone by your side who has experience with a variety of cases can add a level of comfort to the legal process. They may be able to guide you in the right steps to help you avoid making dire mistakes that could cost you certain assets, custody or visitation rights. Seek out the help of an accomplished attorney before stepping into such a critical issue as divorce.
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What are acceptable grounds for divorce?New York became a no-fault divorce state in 2010. A couple can obtain a no-fault divorce if one has stated that the marriage has been irretrievably broken for at least six months. Before the no-fault divorce will be granted, the issues of dissolution must be resolved, such as property division and child support. New York continues to recognize fault grounds for divorce, such as abandonment by the other spouse, cruel and inhuman treatment, adultery or incarceration.
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How long do child support payments last?The termination of a child support order occurs when certain requirements are met. New York State law requires child support to be paid until the child attains 21 years of age. However, this may be adjusted, depending on the specifics of the divorce. The parties may agree to extend child support until the child graduates from college, often at the age of 22, in order to meet the educational needs of the child. Child support may also be earlier terminated, if the child is deemed emancipated, i.e., if the child is living on his own and self-supporting or, in some circumstances, when the child refuses to have a relationship with the parent paying support, despite that parent's best efforts.
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How are assets and debt divided?The divorcing couple can decide to divide the property and debts on their own if they are able to do so, often with the aid of experienced counsel. If the divorce is contested and the matter proceeds to trial, the judge will make these decisions. The divorcing couple can submit their property dispute to the court, which will be divided based on state law. In New York, property and debts are distributed based on the principle of equitable distribution, which means that it will be fairly, but not necessarily equally, divided.
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What is the difference between marital and separate property?
If you are discussing the distribution of property during your divorce, it is important to have a clear understanding of the difference between marital and separate property. Separate property is that which was acquired before the marriage, as well as any gifts or inheritance from a third party. It also includes compensation for personal injuries. Marital property is any and all other property that was acquired during the marriage, no matter how the title is actually held.
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