Divorce can be one of the biggest steps in the process or regaining control over your own life.

The process of divorce can also be very confusing. While people, in most instances, are free to enter into marriage, in New York only the Supreme Court can terminate a marriage. Because divorce laws are different in each state, it is important to work with an attorney to protect your rights.

Grounds for Divorce 

In order to obtain a divorce in New York State, an individual must have "grounds". New York is NOT a "no fault" divorce state. Therefore, incompatibility or irreconcilable differences are not justifications for divorce.

Grounds for divorce in New York include the following:

1. Cruel & inhuman treatment.

2. Abandonment for one year or more. 
 
3. Constructive abandonment (lack of marital relations) for one year or more. 

4. Imprisonment for three years or more. 

5. Adultery.

6. Living separate and apart pursuant to a separation agreement for one or more years.

An Attorney can help you develop well constructed grounds for divorce. 

General Process and Divorce Terminology

While the process of divorce can vary greatly depending on numerous circumstances, every divorce is started by filing a summons in the county clerk's office and paying a filing fee. The spouse filing the divorce is known as the plaintiff, and the non-filing spouse is known as the defendant. This document sets out what the grounds are and what relief the plaintiff wants. The plaintiff must serve the summons on the defendant spouse. Thereafter, the defendant is given time to appear in the lawsuit to contest the issues if he or she desires. Only if both parties agree on the terms is the case called "uncontested".

If both parties do not agree, the divorce is "contested". With a contested divorce, it is essential to involve an attorney to help you prepare for trial. Failing to file the proper paperwork or improperly drafting a pleading can result in your rights not being protected.

In between the initial pleadings and the trial there are a series of intermediate steps, each requiring additional pleadings and paperwork. The primary tools a lawyer uses are pre-trial motions and discovery. Your attorney can file motions to help obtain temporary orders for support, custody, and visitation as well as exclusive use and occupancy of the marital residence and spousal maintenance. An attorney can use formal discovery to get documents and information under oath.

A preliminary conference sets up a timeline for the divorce, identifies what issues are on hand, and sets dates for the exchange of information. Among the documents the parties may need to exchange are net worth statements, appraisals of real estate, tax returns, bank account statements, and other document requests. If children are involved, the court will also determine whether the children need independent representation, and if so, appoint a "law guardian" to represent the children's best interests. The compliance conference is another court meeting to make sure that both sides have all the information necessary to go to trial. If a settlement has not been reached and both sides are ready for trial, the court will direct the plaintiff to file a Note of Issue and a Certificate of Readiness. Often there are pre-trial conferences held to see if any issues can be resolved before the actual trial. After trial, the Court will issue a decision.

How Long Will It Take

The most common question involving divorce is "how long will it take". We understand that many couples want to move on and start a new chapter of their lives. A simple uncontested divorce may be processed through the Courts within 90 days, depending on the Court's schedule. A complex contested divorce action, involving contested custody, valuation and property issues can take from one to three years and sometimes longer. It is important to work with an attorney you are comfortable with, who understands your issues.

Privacy 

All original documents are located in the County clerk's office, but divorce files are not public record. The privacy accorded matrimonial matters is a recognition of the inherently personal nature of these proceedings. Except by order of the court, the law prohibits the clerk of the court from allowing anyone, other than a party, or their attorney, to examine or copy anything in the Court’s file.

In New York State, an action for divorce may be maintained only when one of the following residency requirements are met:  

• The husband and wife were married in New York, and either party is a resident of New York for at least one year prior to the initial filing for divorce.
  
  
• The parties have resided in New York as husband and wife, and either of them is a resident of New York for at least one year prior to filling.
  
  
• The grounds for divorce occurred in New York, and either party has been a resident of New York for at least one year prior to filing.
  
  
• The grounds for divorce occurred in New York, and both parties are residents of New York at the time of filing.
  
  
• Either spouse has been a resident of New York for at least two years prior to filling.

How to get the most out of an Attorney while controlling costs. No one ever looks forward to the pain and expense of a Divorce or the search for an Attorney to help. The costs of a divorce can vary greatly. However, there are several ways to best utilize your attorney during a divorce and keep your costs down. You can help the process by being well prepared and organized. Keep a file for all notes, letters, and important documents. Some of the documents you will want to gather include:

• Full contact information for both spouses (address, phone number, social security numbers).
  
  
• Names, ages and addresses of the children of the marriage.
  
  
• Information about any prior marriage of either spouse.
  
  
• Any domestic contracts such as a prenuptial or postnuptial agreement.
  
  
• Information about any prior court proceedings involving you, a spouse or the children (including judgments, decisions, orders).
  
  
• Dates and details about about any separations, attempts at reconciliation, or marriage counseling.
  
  

Arrive on time in presentable dress and do not use any substances that impair thinking such as drugs or alcohol. Be prepared to answer questions and make decisions for yourself. Consider your needs and state the issues in a constructive way. Divorces and negotiations takes time so be patient and persistent.

Our attorneys will help you through this difficult time, help you understand the issues in your case, help solve problems and help negotiate a proper settlement.

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