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Divorce in New York State

Contemplation of divorce can be daunting and receiving divorce papers from your spouse can be equally overwhelming.  As upsetting as it may be, it is crucial to quickly work with an attorney with whom you not only feel comfortable, but who will strongly advocate on your behalf to work toward a fair outcome.  Let the experienced and compassionate attorneys of the Law Offices of Nathan Pinkhasov, PLLC guide you through this difficult time.

Divorce in New York State is a broad area and can range from rather simplistic, with no required appearance in Court by the parties to a long-protracted process with multiple court appearances.

At the Law Offices of Nathan Pinkhasov, PLLC, our attorneys provide exceptional legal advice and guidance to clients facing divorce and all potentially related issues such as child custody and visitation/parenting time; spousal support; child support; equitable distribution, separation agreements; and orders of protection/domestic violence.

No two divorces are identical as many individual factors come into play in each situation, such as the length of the marriage, the education and profession of the parties, whether or not there are children from the marriage, whether the children are minors or emancipated, with whom the children should reside; the extent or limitation on visitation/parenting time, if necessary, the proportionate income of the parties, each party’s health and ability to be self-sustaining - or not, depending on the circumstances, each party’s property before the marriage, property obtained during the marriage, dissipation of marital assets, any special needs and/or expenses of the children, violence between the parties.

At the Law Offices of Nathan Pinkhasov, PLLC, our mission is to make sure your family’s needs and concerns are met with not only competent, but also caring and compassionate legal advice.  Our firm is dedicated to achieving client satisfaction during this emotional time in your life.

By recognizing that each client presents unique circumstances, we are able to tailor our advocacy based upon your particular concerns and desires.  By engaging in a healthy dialogue with our clients, we are able to gain a true sense of your primary concerns and develop the focus of your matter in order to achieve the best results for you.

In many cases, a divorce settlement can be achieved without the intervention of the court, by some form of Negotiation, Mediation or Collaborative means. When you and your spouse wish to divorce and agree about what will happen with your children, your finances, and your property after the divorce, it is referred to as an uncontested divorce. An uncontested divorce is a relatively quick process and generally does not require either party to appear in Court.  Often times, an uncontested divorce is based upon a Stipulation of Settlement or Separation Agreement, but such an Agreement is not required.

Uncontested Divorce:

While the divorce process is not an easy one to navigate, an uncontested divorce is the easier path.  In an uncontested divorce, the other spouse does not oppose the divorce commenced by one spouse. If the divorce is “on consent,” the defendant agrees to the divorce by signing certain documents.  If the divorce is “on default,” the defendant does not respond to a Summons with Notice that is served upon him or her.

The alternative, a contested divorce, is a lengthier process, is more costly and generally more stressful for both parties. Although it is usually more desirable to proceed with an uncontested divorce, there are instances when it may be in your best interest to proceed with a contested divorce.  The attorneys at the Law Offices of Nathan Pinkhasov, PLLC will guide you in determining which path is more appropriate based on the facts and circumstances presented by your case.

Contested Divorce:

When spouses are unable to come to an agreement as to the grounds for divorce or what will happen with your children, your finances, or your property after the divorce, or when one spouse does not want the divorce, their case is presented to the court.  This is referred to as a contested divorce and can involve various motions before the Court seeking immediate relief such as temporary or pendent lite (during the pendency of the matter) as to issues of child custody, visitation/parental time, child support, spousal support, orders of protection, to name a  few.  Because the judge will require detailed information to decide the issues that you and your spouse cannot agree upon, a contested divorce will require you and your spouse to go to the Supreme Court on several occasions during the pendency of your divorce.

Once it has been decided that you will proceed by contested divorce, we will immediately commence the action and arrange for your spouse to be served with the required documents.  After service, your spouse has between 20 and 30 days, depending upon whether served in or outside of New York State, to provide a written response.

Once your spouse has responded, or appeared, in the action we will request that the Court schedule a Preliminary Conference whereby both parties and their attorneys meet with the Judge and discuss the schedule for discovery of assets and liabilities for the remainder of the divorce action.

Throughout the course of the divorce, the knowledgeable attorneys at the Law Offices of Nathan Pinkhasov, PLLC will continue to try to negotiate a settlement with your spouse or his/her attorney as we proceed with investigation and discovery of financial materials as per the Court’s schedule.

The Law Offices of Nathan Pinkhasov, PLLC is experienced and knowledgeable about these types of motions and we have successfully argued countless such motions on behalf of our clients.  Due to the broad range of potentially increased complexity of contested divorces, we cannot predict the cost of a contested divorce until we have met with you and have determined what will be involved in your divorce.

The Supreme Court of the State of New York has the power to decide issues of divorce, property division, maintenance, support and custody. After the court hears evidence of the specific facts of the case, it will decide these issues based upon statutory law, such as the New York Domestic Relations Law and case law presenting similar issues.

At the outset, each person hires a lawyer to handle the divorce, whether that be to negotiate a settlement or to present the case to the court.  In order to receive the benefit of all the law has to offer, it is best to retain a knowledgeable and experienced family lawyer.  While litigation in court can be costly from both financial and emotional perspectives, certain family matters can only be resolved through litigation.

It is best for an attorney to represent only one party in a divorce.  If the other party does not hire an attorney, he or she is referred to as pro se, which means they will be acting on their own behalf without benefit of counsel.  Although the law does not require the parties in a divorce to be represented by counsel, it is usually advisable for each party to be represented by a separate and independent attorney.  However, in a marriage of short duration and where there are no children or assets, parties may choose to proceed with only one of them having legal representation.

When it comes to dividing up marital assets, the laws of equitable distribution are complex, dynamic and constantly changing. Before agreeing to a property settlement or asking the court to divide property, it is very important to conduct financial disclosure to determine how and when the specific property and all other assets were acquired.

Separate property is not subject to equitable distribution by the court. The skillful attorneys at the Law Offices of Nathan Pinkhasov, PLLC can guide you through the maze of laws and disclosure devices which may affect your financial rights, obligations and the division of your property.

The attorneys at the Law Offices of Nathan Pinkhasov, PLLC recognize that alternatives to litigation, such as mediation, negotiation or collaborative, can mean the difference between getting a divorce and surviving a divorce.  Ever mindful of the child’s best interest, our attorneys seek peaceful co-parenting solutions to custody and visitation disputes.

Jurisdiction:

To commence a divorce action in New York, New York must have jurisdiction over the spouses and one of the following conditions must be met:

  • Either party must have resided in New York for at least the previous two years;
  • The marriage must have taken place in New York and at least one party must have resided in New York for the previous year;
  • The ground for divorce must have taken place in New York and at least one party must have resided in New York for the previous year; or
  • Both parties reside in New York and the grounds for divorce occurred in New York.

Grounds for Divorce:

New York has both no-fault and fault grounds for divorce.  The knowledgeable attorneys at the Law Offices of Nathan Pinkhasov, PLLC can guide you in determining which grounds are appropriate for your divorce and frequently, can involve commencing the action by alleging multiple grounds for divorce.

Two grounds which do not require fault in New York are an irretrievable breakdown of the marriage for a period of at least six months; and living apart for one year pursuant to separation agreement.  For the grounds of irretrievable breakdown, the party bringing the action must simply state that for the last six months the marriage has irretrievably broken down.  For a divorce based upon a separation agreement, the spouses must have entered into a valid legal separation agreement at least one year prior to the commencement of the divorce action and continued to live apart and in accordance with the terms of the agreement for the one year period.

Fault grounds in New York include the following:

  • Abandonment by the defendant for one year: The following is a description of the three variations of abandonment in New York:
  • Physical Abandonment: The defendant moved out of the marital residence a year or more before the commencement of the divorce action
  • Lock-Out: The defendant locked the plaintiff out of the martial residence a year or more before the commencement of the divorce action
  • Constructive Abandonment: The defendant, for no valid reason, has refused to have sexual relations with the plaintiff for a year or more before the commencement of the divorce action.
  • Cruel or inhuman treatment: Where the conduct of the defendant, the person against whom the divorce action is filed, so endangers the physical or mental well-being of the plaintiff, the person who filed the divorce action, as to render cohabitation unsafe or improper. If you use the grounds of cruel or inhuman treatment, several examples of such behavior must be given and must include the approximate dates and places where the incidents occurred with all incidents to have occurred within the five years before commencing the divorce action. Types of incidents that substantiate these grounds are:  physical abuse; verbal abuse; staying out of the marital residence overnight without explanation; and threats of physical harm. When the examples are nonphysical abuse, a  long-term marriage may require a higher degree of such abuse than a short-term marriage.
  • Imprisonment of the defendant for three consecutive years during the marriage: Imprisonment is not a common ground for divorce. It may be used by the plaintiff only if the defendant went to prison after the marriage took place and the defendant has been in prison for at least the three years immediately prior to the commencement of the divorce action.
  • Adultery by the defendant:  Although, adultery may be a common reason for divorce, it is not often used as grounds due to the high degree of proof that is required by the Court to grant a divorce on this basis.
  • Living apart for one year pursuant to a separation decree, judgment or written agreement, with satisfactory proof of substantial performance thereof:  A much less common ground is a divorce based upon a court ordered legal separation. Very few people are willing to go through the time and expense of a legal action to request that the Court provide an order of separation. Accordingly, it is almost unheard of to base a divorce upon this ground.

ATTORNEYS' FEES IN NY MATRIMONIAL CASES

New York Domestic Relations Law permits the Court to award pendente lite (during the pendency of the action) counsel fees to enable a spouse to carry on with an action or defend against an action regarding the circumstances of the case.   On an application for attorney fees, the New York Court must consider the difficulty of the legal issues involved; the skill required to handle the problem; the time and labor required; the lawyers' ability and reputation; the customary fee charged by the Bar for similar services; and the amount involved. The Court should also consider the relative assets of the spouses. Attorney fees may be awarded for services rendered prior to the commencement of the action.