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Divorce Laws In New York State

How Much Does A Divorce Cost In New York

Should New York State get a divorce?

Although several factors come into play in determining the overall cost for a divorce in New York, it is typical to spend thousands of dollars to complete the divorce process, especially if it is a contested divorce. If you are filing for divorce, you have to pay filing fees at the county courthouse, pay additional fees for any motion filed, attorney fees if you choose to hire a divorce attorney, and other charges for serving your spouse.

Uncontested divorces are usually less expensive than contested divorces. You can get an uncontested divorce if you and your spouse can negotiate and agree on major issues, such as who gets to retain the house. If you request the court’s assistance in determining how property is divided, you will likely incur additional attorney’s costs.

Before filing your divorce action, you will be required to pay filing fees including, $210 for Case Index Number, $95 for the Request for Judicial Intervention, and $30 for the Note of Issue, making a total of $335. You will be charged $45 for any motions filed and $35 for a written Stipulation of Settlement after the divorce action has started. Depending on the circumstances around your divorce, you may not need to file a motion or require a Stipulation of Settlement. To serve the initial divorce papers on your spouse, fees vary between $100 and $200.

Equitable Distribution Vs Community Property

New York is an equitable distribution state. This means, during a divorce in NY,property division is handled in a way deemed most fair to both sides. This is not the same as a community property state, which divides marital property split 50/50 between spouses. The court takes into account factors regarding the marriage and contributions of each party. The courts have considerable latitude in deciding who gets which assets.

At Eiges & Orgel, PLLC, we have over 60 years of collective experience handling the complexfamily law issues involved in property division. We can carefully review the facts of your case, create a comprehensive strategy for getting you the fairest share of assets, and explain the process clearly as you go through the difficult time of a divorce in NY. Ourequitable distribution lawyers believe in working with the other party’s attorney in order to get you the best results possible, but we are also very aggressive when they are not willing to be fair.

Contact an equitable distribution lawyer at Eiges & Orgel, PLLC today at to discuss your divorce and equitable distribution of marital property.

What Should My Separation Agreement Say

In general, a separation agreement covers:

  • Basic information such as the date you were married, the date you separated
  • Who the children will live with
  • Who will pay which bills
  • How property, like your home and cars, will be divided up and cared for

It is important to think carefully about the terms of your separation agreement. If you decide later to get divorced, the terms of your separation agreement can become the terms of your divorce.

To help you prepare to speak with a lawyer about a separation agreement, the following is a list of issues a lawyer will likely to ask you about. Consider each issue carefully:

Where you will live

Legally separated spouses must live separately at all times.

Spousal support

The agreement must specify the amount of spousal support you or your spouse will pay to the other and for how long.

Custody

You and your spouse will need to decide if one of you will have sole custody of your dependent children, or if you will share custody .

Visitation schedules

Whether you have sole or joint custody, your separation agreement should include:

  • A regular visitation schedule
  • A holiday visitation schedule
  • A vacation visitation schedule

Child support

Typically, the parent who has the child for the least amount of time pays child support to the other parent. You will need to decide how much, and how often, the paying parent pays.

Any additional costs for children

Your home

Other property

Pensions and retirement

Who will pay which bills

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Number : Extremely Unlikely That You Will Go To Trial

Very few divorces actually go to trial. This is especially true now that there is no fault divorces in New York. Less than 5% of divorces go to trial. However, many divorces will settle on the first day of trial.

Therefore, you and your spouse will eventually settle the case and enter into an Agreement . The Agreement is a contract between you and your spouse and it will set forth all the terms and conditions of your divorce. This will include: dividing the marital assets, responsibility for debts, child custody, child support, parenting time, maintenance, as well as many other items.

It is very important the Divorce Agreement be comprehensive and correct. It is a contract and, although there are exceptions, the Court will expect that you abide by the contract.

Bifurcation Of Marital Status

Legislator Seeks to Fix New York State

Bifurcation means that both parties in a divorce can legally declared as a single person while the other issues in their divorce are still being worked out. It does not affect things such as child custody, visitation, child support, alimony or other contentious issues that may have stalled or become major sticking points that are keeping the divorce from being finalized.

Bifurcation of marital status is generally not granted in New York except for compelling reasons. Part of the reason bifurcation is frowned upon is that it can result in two trials instead of one and it also removes any sense of urgency in resolving economic issues because incentives for settlements are removed. Couples must consider that they will have to pay court costs and attorneys fees for two trials instead of one when considering a bifurcation action.

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New York Child Custody

New York child custody is a legal expression referring to a parent’s legal authority to direct a child’s upbringing. As a parent, even if you are not granted custody, you are likely to be entitled to visitation rights with the child. Both parents have a legal right to seek custody and visitation in a divorce.

Custody is divided into two components: legal and physical. Legal custody touches on the right to make important choices concerning your kid. This includes where your child attends school, the kind of religious education received, and medical decisions regarding the child. Physical custody refers to the person with whom the child lives daily. A parent having primary physical custody is sometimes referred to as the “custodial parent” or the “primary caretaker” of the child.

Section 70 of the New York Domestic Relations Law establishes custody determinations in the state. In determining visitation and custody, a New York judge considers whether there has been domestic violence and what is in the child’s best interest. Factors that will be considered include:

Spousal Maintenance In New York

Laws changed in 2015 that created a presumptive formula to determine how much spousal maintenance one spouse should pay another. These amounts and time periods are presumed to be correct unless evidence can be presented to show why those variables should be changed. The court does have the discretion to order different amounts based on explanations in may be given.

Temporary support is ordered to paid to an ex-spouse while a divorce case is pending and is ordered as part of proceedings in Supreme Court. Spousal maintenance is ordered by the Supreme Court as part of the divorce, but the Family Court will have the jurisdiction to modify or enforce the order after the divorce is finalized.

For a marriage up to 15 years, maintenance will last for 15% to 30% of the length of the marriage. For marriages lasting 15 to 20 years, maintenance will last 30% to 40% of the length of the marriage. For marriages lasting more than 20 years, maintenance will last 35% to 50% of the length of the marriage.

Courts can adjust spousal maintenance based on a number of factors. Some of those include:

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I’m Legally Separated But Now I Want A Divorce What Do I Do Now

If you want the terms of your divorce to be the same as the terms in your separation agreement, file for a conversion divorce.

What is a conversion divorce?

A conversion divorce is a divorce based on an existing separation agreement.

How is a conversion divorce different from a regular divorce?

In a conversion divorce, you ask the judge to include all the terms of the separation agreement in your divorce. The judge will review all of the terms of your agreement and decide whether to include all the terms of the agreement in your divorce.

Also remember: You and your spouse must have lived apart for at least one year, and followed the terms of your separation agreement, before filing a conversion divorce.

If you have not already filed your separation agreement with the county clerk, you must file the separation agreement at the same time you file your divorce papers.

Do I need a lawyer for a conversion divorce?

It is always best to have a lawyer when getting a divorce. If you hired a lawyer to write your separation agreement, that lawyer can help you file a conversion divorce.

How Long After Divorce Can You Remarry Or Start Dating In New York

L.I. mom pushing to reform New York state divorce, family courts

In New York, a spouse can remarry only after the Judgment of Divorce has been signed and filed with the Certificate of Dissolution of Marriage. Generally, a spouse can safely start dating again after a Separation Agreement has been signed by both the husband and wife, or after the Judgment of Divorce has been signed and filed with the Certificate of Dissolution of Marriage.

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Legal Grounds For Divorce

No-fault Grounds:

As of October 12, 2010, New York is now a no-fault divorce law state. Meaning you can get a “no-fault” divorce if, according to either party, the marriage has “broken down irretrievably” for a period of at least six months.

Fault-Based Grounds:

In New York, you can file for a fault-based divorce for any of these reasons:

Divorce In Your County

This page features courts that provide county-specific online divorce information. Before you start the divorce process, see the brief descriptions below of the information provided by each county. Use the links provided to quickly access this information.

Quick Links Index:

Westchester

If your county is not listed, go to Supreme Court Contact Information. Select your county of residence from the list and contact the court directly for additional information.

Remember, only the Supreme Court can give you a divorce in New York State. Please use the resources available on this website if you need help finding a lawyer or completing your divorce papers by using the court’s free divorce forms and instructions.

If your case is not yet in court, or if you have parenting or economic issues to resolve with your spouse during your divorce and you want to do it outside of court, you may condsider forms of alternative dispute resolution such as mediation or collaborative divorce to help reduce the emotional and financial stress of divorce for you and your children.

  • Fifth Judicial District – includes: Herkimer, Jefferson, Lewis, Oneida, Onondaga & Oswego CountiesThe 5th Judicial District offers parties access to trained neutral evaluators and mediators for commercial, personal injury, general civil, matrimonial cases. Contact the professionals directly to learn about their credentials and hourly rates.

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Pensions Iras 401ks And Retirement Plans

All pensions, IRAs, 401Ks and retirement plans are treated as marital property in New York. This means they are subject to the states equitable distribution laws and are divided by what is known as the Majauskas Formula, named after a landmark court case known as Majauskas vs. Majauskas.

Courts have the right to modify this formula or can use other methods to distribute pension and retirement benefits. This can include awarding a flat dollar amount that will not change even if one spouses retirement rises significantly prior to retirement. A share of retirement funds can also be calculated based on final salary and service credits as of a specific date, which is usually the commencement of the divorce date.

Legally splitting pensions and other retirement funds is a multiple step process. After the divorce decree has been issued, an attorney or a specialized firm must create a qualified domestic relations order, more commonly referred to as a QDRO.

The QDRO must be approved by the courts and then it can be submitted to the plan administrator who must also approve it. This establishes that a spouse can be considered an alternate payee, and the retirement vehicle is then divided according to the specifics contained in the QDRO.

The most efficient way to get a QDRO drafted is to have it done online. Services like QDRO Counsel are the perfect resource for this, since they will take your information and draft your QDRO remotely!

Filing For Divorce In The State Of New York:

Residency &  Grounds for Divorce in New York State

The first step to filing for divorce in New York is identifying which one of the Seven Legal Grounds serves as the motivation behind the divorce. In New York, divorcing couples must select and present valid reasoning responsible for motivating the divorce before a judge. For specific questions on eligibility for divorce, contact an attorney and review the guidelines for divorce at NYCourts.gov.

The Seven Legal Grounds for divorce are as follows:

  • Judgment or Separation
  • Irretrievable Damage

Once a couple has identified which of the seven legal grounds motivate their divorce, the court expects them to prove compliance. In most cases, the actions or behavior establishing the presence of the selected legal ground must either be occurring or have occurred within the last five years. For the legal bases of imprisonment, the imprisonment must have happened within the previous five years, and the prison sentence must be a minimum of three years. Generally, each legal ground has a list of stipulations. In combination with proving the presence of one of the seven legal grounds for divorce in New York, divorcing couples must also meet the state residency requirement. Couples must prove that one or both spouses have lived in New York uninterrupted for a specific period to establish eligibility for filing a divorce. Generally, the court sets the eligibility requirement at one year.

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Same State Different Addresses

You do not have to remain at the same address to fulfill your residency requirement. You can move anywhere within the state from which you are filing. The forms do not require you to list all addressees, but you should be prepared to prove where you lived during the separation in the final hearing.

Choosing A Divorce Lawyer In New York

A divorce action can be a complex, technical, and emotional process for the parties involved hence, it is vital that you opt for an experienced divorce attorney with practical experience in the particular areas that are important to you. You may find the following steps helpful in choosing a divorce attorney:

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Do I Really Need To Hire A New York Divorce Attorney

Should New York State get a divorce?

While you have no obligation to hire an attorney in any case, do you really want to go forward in a divorce without an experienced attorney? Unless you are a brain surgeon, you would not perform brain surgery on a loved one, would you? No. Instead, you would leave it up to the trained professional who has been through the process before.

Although you may not like the idea of having to hire and pay for an attorney, doing so may be the best decision you make. An experienced attorney will make sure to protect your rights and make sure that you are not taken advantage of by your spouse and/or her/his attorney.

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What Is A Separation Decree

Another form of separation is through a judgment of separation granted by the Supreme Court. This judgment is based on the same four fault grounds as for divorce. However, the abandonment may be for less than a year. In addition, non-support is a ground for a decree of separation, although not for a decree of divorce.

One year after the filing of the courts judgment of separation, either party may sue for a no-fault divorce, based upon one year of living apart. A divorce does not occur automatically after a year. Court action must be taken.

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