1.- What is the difference between divorce and separation?
Divorce is a legal termination of your marriage. Separation means that you and your spouse are agreeing to live “separate and apart” and to abide by terms of a “separation agreement” which you have agreed to with your spouse. Parties that are separated remain legally married and may end the period of separation at any time. Once parties have been “legally separated” for at least 1 year, either spouse can ask the Supreme Court to convert the legal separation into a Divorce.
2.- Why would I want a legal separation instead of a divorce?
There are many reasons a person may only want a legal separation as opposed to a divorce. An experienced attorney at Simon & Milner can review your situation and advise you of the most favorable way for you to proceed.
3.- What are the Requirements for getting divorced in New York State?
In order to get divorced in New York State, you must meet 2 requirements, you need “grounds” and “jurisdiction.”
Jurisdiction gives the Court the power to hear your case. If you or your spouse have been living in New York for at least 2 years or were married in New York and have been living here at least 1 year you automatically are granted jurisdiction. There are many other ways to be granted jurisdiction as well and an experienced attorney at Simon & Milner can explain them to you if necessary. Most people will have no problem obtaining jurisdiction assuming they live in New York State.
Grounds is the reason you want to get divorced. There are a limited number of reasons for which you may get divorced in New York State. They are as follows:
Irretrievable Breakdown of the Relationship A/K/A NO FAULT DIVORCE: As of October 22, 2010, New York State joined the rest of the country in allowing “No-Fault” Divorce. Any party may get divorced by stating under oath that “the relationship between husband and wife has been irretrievably broken for a period of at least 6 months.”
It is important to keep in mind that “No Fault” divorce does not mean an “uncontested” divorce. “No fault” simply means that neither spouse is deemed to be “at fault” in causing the divorce. The assigning of fault has no effect on the distribution of money and property in the divorce except in cases of egregious conduct by one spouse. Spouses must still come to an agreement or go to trial on issues of distribution of property and other assets, custody, child support, maintenance (alimony), pension distributions, and countless other issues.
Abandonment: Available when your spouse has left the marital residence for a period of at least one (1) year through no fault of your own and refuses to return to the marital residence.
Constructive Abandonment: Available when your spouse has refused to have sexual relations with you for a period of at least one (1) year even though you have been willing and there is no physical impairment to your spouse.
Adultery: Available if your spouse has had sexual relations with another during the course of the marriage. This ground is rarely used as you need the testimony of an independent witness besides yourself (and as there is no benefit to proving fault, it is not worth the trouble of proving). In addition, there are several defenses to adultery which make it even harder to prove. For instance if both spouses have committed adultery, the Court will usually not grant a divorce on these grounds. In addition, if you have sexual relations with your spouse after learning of the adultery this is considered forgiveness (known as condonation) and is an additional defense to adultery.
Cruel and Inhuman Treatment: Available when your spouse has committed multiple acts of physical or emotional cruelty towards you which makes it unsafe or otherwise impossible to continue the marriage.
Imprisonment: Available if your spouse has spent three (3) or more consecutive years in prison.
Conversion of a Separation: Available after parties have been living separate and apart pursuant to a separation agreement for more than 1 year, either party may ask the court to “convert” the separation to a divorce.
4.- How do I get Started?
If you have already been served with papers it is important that you speak to an experienced attorney as soon as possible. If you have already been served, then the process of a divorce has already been started. The law only provides you with 20 days to put an answer into the Summons with which you have been served. It is essential that an experienced attorney put an answer into the summons and begins to protect your rights.
Assuming you have not been served, you need to speak to an experienced attorney who will gather all of the necessary information from you and advise you of the most advantageous way to proceed.
5.- What should I bring to my First Appointment?
That of course varies depending on your situation but at a minimum you should expect to bring:
1.- Last 2 pay stubs
2.- Last 2 tax returns and W-2s
3.- Last months' bank statements
4.- Any recent statements from pensions, retirement accounts, etc…
5.- Most recent appraisal of your home (if applicable)
6.- Copies of deed and mortgage statement (if applicable)
7.- List of any other assets owned by you or your spouse
8.- List of any businesses owned by you or your spouse
9.- Copies of monthly bills
10.- List of approximate monthly living expenses
6.- How does a divorce case proceed?
After an attorney has determined that you should file for divorce, the process is started by the filing of a “Summons and Complaint for Divorce” in the Supreme Court of your county or your spouse's county. The Summons must be served personally upon your spouse. Except in very limited circumstances there is no exception to personal service in this instance.
Your spouse must then respond within twenty (20) days. If they do not, you make take a “default judgment” and proceed without your spouse.
Assuming they do answer, 97% of divorce cases will settle at some point after your spouse has been served but before trial.
In order to settle a divorce case, very often, appraisals and evaluations must be done of any property, businesses or pensions owned by the parties so that everyone knows what the various marital assets are worth.
An experienced attorney at Simon & Milner will fight to ensure you receive the maximum settlement that you deserve! If necessary, Simon & Milner will go to trial and fight for you to receive the largest award possible!
7.- What are the biggest issues in a divorce?
This will obviously vary on a case-by-case basis, but in general, the following are usually the most contentious issues:
1.- Marital Residence
(Will you sell it or will one spouse remain living there? How long does the remaining spouse have to “buy out” the other spouse.”)
issues regarding the children
• For more info on Custody/Visitation click here
3.- Child Support
• For more info on Child Support click here
• For More info on Maintenance click here
5.- Distribution of pensions
6.- Distribution of all other assets such as cash, bank accounts and other personal property
7.- Family Businesses
8.- Timeshares (Very often both spouses want the other spouse to take it)
8.- How long will it take to get divorced?
There is simply no answer to this question. Some divorces resolve in a matter of weeks, others can take longer. It all depends on how many issues are in dispute and how persistent you wish to be. Some people are willing to make concessions simply to get the process over with faster, others want to fight to the bitter end for what they feel they deserve. Either option is reasonable depending on your situation. Simon & Milner will be here to stand beside you regardless of which path you choose and to advise you which course to take and when. An experienced attorney from Simon & Milner will be relentless in negotiations to get you what you deserve, and if necessary, will fight hard for what you deserve at trial.
9.- What if I need help NOW!!!
Sometimes you don't have weeks, months or years to wait for relief from the Court. Perhaps your spouse has abandoned you and left you to support yourself and the children on just a part-time salary. Perhaps your spouse has taken the children and will not let you visit. Maybe your spouse has become violent and abusive and you need them out of the house immediately.
The Court provides a remedy for this situation known as pendente lite relief. An experienced attorney from Simon & Milner will be able to determine if your situation calls for a Motion for Pendente Lite Relief. Such a motion will get certain important issues before the Court immediately so that the Judge can make a quick and temporary decision. The decision only applies until the case has been settled or decided at trial. At that point, whatever you have agreed to or are ordered to do by the Court will replace the pendente lite order.
Preparing a Motion for Pendente Lite Relief is a time consuming and complex process. You need an experienced attorney who will know how to put the motion together and argue the motion so that the decision is most advantageous to you. An experienced attorney at Simon & Milner will be able to tell you if your situation calls for Pendente Lite relief and we will be able to fight hard for you to get the relief you deserve!
10.- Will I have to go to Court?
Again, this varies based upon your individual situation. If an agreement is reached quickly, and there are no complex issues, you may be able to avoid a court appearance altogether. However, if you need pendente lite relief, or if you have complex or highly contentious issues, it is almost a certainty that your case will require you to make a court appearance. Typically, the parties in divorce cases are required to attend each and every court appearance.
There is no typical number of appearances required. Some cases may only require 1 appearance, others could require 20. There is no general rule.
11.- Where do I have to go to Court?
Most divorce cases (there are some exceptions) are heard in the following locations:Bronx County – Civil Division
851 Grand Concourse
Bronx, NY 10451(718) 618-1200Kings County
Kings County Supreme Court
360 Adams Street
Brooklyn, NY 11201(718) 675-7699Nassau County
Nassau County Supreme Court – Matrimonial Center
400 County Seat Drive, 2nd Floor
Mineola, NY 11501(516) 571-0773NEW YORK COUNTY
New York County Supreme Court
80 Centre Street
New York, NY 10013(646) 386-3600
New York County Supreme Court
71 Thomas Street
New York, NY 10013(646) 386-3600QUEENS COUNTY
Queens County Supreme Court
88-11 Sutphin Boulevard
Jamaica, NY 11435(718) 298-1000RICHMOND COUNTY
Richmond County Supreme Court
18 Richmond Terrace
Staten Island, NY 10301(718) 675-8700SUFFOLK COUNTY
Suffolk County Supreme Court
Cohalan Court Complex
400 Carleton Avenue
Central Islip, NY 11722(631) 852-2334
12.- How much experience do you have?
The simple answer… A LOT! Simon & Milner has handled literally thousands of divorces and family court matters. We pride ourselves on providing expert and aggressive representation that ensures our clients get what they deserve. We will fight as long and as hard as you want us to! Our firm understands the nuances of matrimonial law and know every detail which must be addressed to ensure you get the outcome you deserve!
Contact us today and make an appointment for a FREE consultation to see how Simon & Milner can pursue and protect your rights!
13.- How much is all of this going to cost?
Again, there is no simple answer to this question. The price will depend entirely on how much work your individual case will involve. Obviously, the more assets you are fighting over, whether or not custody of the children is an issue, and how quickly you are able to reach an agreement (or, if you don't, how long the trial takes) will all determine how much the divorce will cost you.
In addition, there are other fees and expenses that you should be prepared for during a divorce:
1.- The cost to file a Summons for Divorce is $210.00
2.- You must pay a process server to serve the divorce summons on your spouse
3.- If there is a custody dispute, the Court will appoint an attorney to represent the children (also called a Law Guardian) and you and your spouse must pay for that attorney out of your own pocket
a) If, however, you allow the Family Court to hear your custody dispute, the family court will appoint a law guardian for free. Only an experienced attorney can tell you which option is right for you.
4.- Appraisals for your home or other real property, businesses, pensions, etc…
The only way to give you a fair estimate is for you to make an appointment for a FREE consultation so we can properly evaluate your case and determine how much time we think your case will involve.
14.- What if I can't afford an attorney?
If you do not have money to pay an attorney but your spouse does (i.e. you are a stay-at-home Mom but your husband works full time), you may be able to ask the Court to order your spouse to pay your attorneys' fees. Come in for a free consultation and an experienced attorney at Simon & Milner will be able to tell you if you could qualify for such relief.
15.- Any other Questions?
If you have more questions about child support, custody, visitation, orders of protection or any other family law issue related to a divorce you may be able to find an answer on our Family Law Page by clicking here.
Otherwise, Please contact us at this office and make an appointment for a free consultation with an experienced matrimonial attorney at Simon & Milner who can answer all of your questions and help to put you at ease through this otherwise difficult and emotional process.