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Divorce

All marriages end. Either someone walks out or is carried out. If you are thinking about ending a marriage or concerned that your spouse may be considering divorce, it is essential that you understand your rights and responsibilities under all circumstances.

For the first time in history “until death us do part” is less likely for Americans 50 or older, as they are getting divorced rather than becoming widowed.

Demystifying the process of divorce is the first step to having a successful resolution.

All divorces are either uncontested or contested. The only difference is when there is an uncontested divorce both spouses have agreed about each and every aspect of the financial and custodial issues between them as well as the granting of a divorce to one of them. All other divorces are considered contested.

Until October 13, 2010, New York State did not allow no fault divorce unless a married couple not only executed a formal separation agreement globally resolving all their rights and obligations, but they had abided by its terms by living separate and apart for more than a year. Since that time, if one party alleges that the marriage has been irretrievably broken for six months or more, he or she can obtain a divorce without the other party’s consent, but the judgment of divorce will not be granted until all the issues are resolved. While six other grounds remain available, most parties limit their action for divorce to the no fault ground to streamline the process. Since New York’s Marriage Equality Act did not become effective until July 24, 2011, the no fault law only applied initially to heterosexual couples. Now, it is available to all New York marriages.

While marital fault is no longer an issue for grounds, after six months of marriage, economic fault can still be a factor, if a spouse’s actions deplete the marital estate.

A divorce action is started with the filing of a summons for divorce and purchasing of an index number. Whoever files the summons for divorce is the plaintiff and will be subject to an automatic order prohibiting that person from selling or doing anything to lessen the value of property or assuming any debt out of the ordinary, except for reasonable attorneys’ fees during the course of the divorce action. Once the other party, the defendant, has been served with the summons for divorce, he or she will be subjected to the same restrictions.

Many parties are able to resolve the various issues of property division, spousal support, child support and custody without the court’s assistance.