Divorce is a complex process. Navigating divorce court can be overwhelming, especially if you don’t know what to expect. There are a lot of moving parts and it’s a good idea to have an attorney who knows the ropes. This can help to streamline the process and ensure that you have the best possible outcome in your case.
If you are getting a divorce, here is what you need to know about the New York divorce process and what to expect.
How Does Divorce Court Work in New York?
In New York, a marriage legally ends in one of two ways. Either one or both spouses die, or the couple goes through a divorce. In New York, a divorce is not finalized, and the marriage is not legally ended until the Judgment of Divorce is signed by a judge.
In New York State the only court that handles divorce is the New York Supreme Court. Family court helps with child support issues, child visitation, and child custody, but not divorce.
In divorce proceedings, the person who files is called the plaintiff while the other party is called the defendant or respondent. It doesn’t really matter who files first (the plaintiff) in most cases because the court must be equally fair to each person. However, in some cases of property division, the person who files first may have a bit of an upper hand.
Some divorce cases are very easy. They are typically uncontested, meaning that both parties agree on most or all of the terms, including property division and child custody. Other divorces don’t go so well, especially if they are contested, meaning that one party contests all or a portion of the divorce.
Is NY a 50/50 state for divorce?
New York is not a 50/50 (or community property) state. When it comes to divorce in New York, a judge will divide the marital assets and debts equitably. This means that the division is fair. Marital assets are divided using equitable distribution.
The court looks at several factors and uses that information to decide how the property should be divided. Some of the areas that are evaluated include:
- Income of both parties
- Property of both parties
- How long they were married
- Health and age of each partner
- If the custodial parent needs to remain in the marital residence
Very rarely are marital assets divided exactly 50/50. Each party is awarded the property that they acquired on their own prior to or sometime during the marriage. All other property is divided by the court.
How Do I Prepare for a Divorce Court Hearing?
A divorce hearing is different from a divorce trial, but it is part of the process. It helps to get some clarity on issues that are important and can be instrumental in getting all the terms of the final settlement worked out so that the rest of the process can move along more smoother.
When you are preparing for your divorce hearing, you need to pull together any evidence or documentation that you may have on issues you want to discuss (especially if you suspect there will be some contention). Talk to your attorney and be completely honest. Your attorney may give you some instructions on preparation, such as getting contact information for witnesses or documentation that you will need to present as evidence.
It is best to get these things sooner rather than later. If you wait until the last minute, you could find yourself walking into court without it because you can’t find it.
How Long Does a Divorce Trial Take in NY?
Each divorce is different so pinning down a definite timeframe for how long a divorce takes is impossible. However, on average, a contested divorce takes anywhere from 9 months to two years to finalize. Some cases can take longer, some are completed sooner.
An uncontested divorce does not usually take as long, but it can still go on for a year or so. But if both parties are in agreement on the important terms of the divorce, it can take around 3 to 6 months to finalize.
Who Pays for Divorce in NY?
New York law gives the court authority to assign either spouse the obligation to pay expenses for the divorce such as attorney’s fees and expert fees so that both spouses can defend their own interests in the divorce proceeding.
There are a number of factors that the judge will consider when deciding whether to award attorney’s fees:
- Asset and income disparity between the two spouses
- If the case was pursued in good faith
- Nature and necessity of the legal services that were rendered
- If the actions of either party caused a delay in the case
- Services rendered or value and if the amount requested was reasonable
- Complexity of the case and the outcome
Do You Need a Legal Separation to Get a Divorce?
In New York, a couple who lives apart, no matter how long, is not legally separated. There are two ways a couple can become legally separated under New York law:
- The spouses enter into a legal separation agreement
- The couple seeks a judgment of separation granted by the New York Supreme Court
One of the grounds for a New York divorce is for the couple to be legally separated for at least one year. There are some instances though, where this does not apply, and the couple can get a divorce considerably sooner.
How is Property Divided in a New York Divorce?
The property in a divorce falls under one of two categories, separate property, and marital property. The separate property was owned by one of the spouses before they entered the marriage. The same applies to inheritance, cash savings, and investments.
The property that was obtained during the marriage is called marital property. These are things that the couple purchased together or separately while they were married.
Division of marital and separate property may be decided when legal separation is drawn up. This means that the spouses discussed the property and came to a solution on their own. This can make the entire divorce go much easier and faster.
How is Child Custody Decided in a NY divorce?
In New York, both parents have equal rights to the legal and physical custody of the child unless there is a court order saying otherwise.
The court can make orders about child custody until the child is 18 years old.
When determining child custody, the court must decide what is in the best interest of the child.
It is best for everyone if the couple can come together and amicably agree on the terms of custody, support, and visitation without the involvement of the court. That isn’t always the case though, and many times it is necessary for the couple to appear in the courtroom so that the judge can make the necessary decisions.
Can a Divorce be Denied?
For the most part, any couple can get a divorce in New York under the state’s no-fault divorce. The only time a judge may deny a divorce is if one or both of the spouses fail to meet the basic requirements for getting a divorce:
- At least one of the spouses must have lived in the state of New York for a minimum of two years just before filing for the divorce
- Both spouses must have lived in the state for a minimum of six months and the marriage is at least six months old
- Either party has lived in New York for a minimum of one year just before filing for divorce.
What are the Grounds for Divorce in NY?
In New York, there are seven grounds that are legally acceptable for getting a divorce in New York.
- Irretrievable breakdown in a relationship for a minimum of 6 months
- Cruel and inhumane treatment
- Abandonment
- Imprisonment
- Adultery
- Divorce after a legal separation
- Divorce after a judgment of separation
Do You Need an Attorney When You Get a Divorce in New York?
Divorce is not easy, but a good divorce attorney can help you get through it much easier while making sure that your rights are protected. When you are getting a divorce in New York, you need an attorney in your corner who will fight for you.
You need the experience, skill, and knowledge of the Litvak Law Firm. We will review your case and work with you to build the strongest case possible. We will walk you through the process every step of the way. If you are considering divorce, talk to us first.
Divorce is not easy, but it helps to have a partner who will work hard to protect your best interests. And that is what the Litvak Law Firm will do for you, call 718-989-2908 and find out for yourself.