WHY YOU NEED AN ATTORNEY FOR A CONTESTED DIVORCE IN NEW YORK
Divorce, custody, child support, and alimony cases are all tough fights to fight. The process is emotionally charged. It may feel like your very being is in peril. But it does not have to be that way. A strong, experienced, methodical contested divorce attorney can be the difference between prolonged chaos and a speedy return to normalcy.
The Court will grant you a divorce when there is either an agreement or a final Court decision concerning: (a) Grounds for Divorce; and (b) Ancillary Issues. The ancillary issues in a divorce case are custody, visitation, child support, alimony, property\debt division, etc.
There are two types of divorce available in New York: contested and uncontested.
What is an uncontested divorce? When you and your spouse agree on the terms of the divorce, then you qualify for an uncontested divorce.
What is a contested divorce? A divorce is contested when you and your spouse do not agree on some, most or any issue raised during the divorce case. A contested divorce is more costly and takes longer to resolve. For this reason, it is better to push your attorney to negotiate your case and settle it.
No-Fault Divorce: In 2010, New York adopted No-Fault as a ground for a divorce. For the Court to grant you a no-fault divorce, you must inform the Court that your marriage has broken-down irretrievably for at least six months before filing for divorce in New York. ‘Irretrievable breakdown of the marriage’ means that your marriage is not functioning, or that you and your spouse are essentially leading separate lives, or that you and your spouse no longer wish to be married, and it is unlikely that you and your spouse will get back together. (Domestic Relations Law section 170 (7).) As long as your marriage has been irretrievable broken for six or more months, you may ask your Manhattan contested divorce lawyer to claim this ground for a no-fault divorce. This is the most common ground used to obtain a divorce in New York.
Other grounds for a contested divorce in New York include:
Cruel and Inhumane Treatment: The Court will assess whether one spouse abused the other either physically or mentally during the marriage.
Abandonment: One spouse must have abandoned the other for at least a year or more and signaled that they do not intend to return.
Imprisonment: One spouse must have been in prison for three or more years in a row after the marriage began.
Adultery: The spouse must prove that the other committed adultery during the marriage.
Divorce After a Legal Separation Agreement: You may seek a divorce one year after you and your spouse have signed a valid separation agreement and have lived apart for one year.
Divorce After a Judgement of Separation: You may seek a divorce if the Supreme Court has issued a judgement of separation and after you and your spouse have lived separate and apart for one year. (Domestic Relations Law section 170)
To file for a contested divorce in New York, you must also meet the State’s residency requirements, meaning:
Either you or your spouse have been living in New York for at least two years continuously before filing an action for separation; or
The parties lived in this state as husband and wife and either party is a New York resident when the action is commenced and have been a New York resident for a continuous period of one year immediately preceding, or
The reason for your separation action occurred in New York and either party has been a New York resident for a continuous period of at least one year immediately before the separation action is commenced, or
The reason for your separation action occurred in New York and both you and your spouse are residents of New York at the time of the commencement of the action, or
Either you or your spouse has been a resident of the State of New York for a continuous period of at least two years immediately preceding the commencement of the action.
(Domestic Relations Law section 230).
REASONS WHY YOUR DIVORCE MIGHT BE CONTESTED
Your spouse does not want to get divorced;
You and your spouse disagree on the grounds for divorce;
You and your spouse disagree on alimony, equitable distribution, child custody, child support, etc.
HOW LONG DOES A CONTESTED DIVORCE TAKE IN NEW YORK?
At Stepanian Law Firm, our attorneys will push hard to settle your case. Negotiating and settling is always less costly than going to trial and asking the Court to make decisions for you. If you and your spouse come to an agreement, then your attorney will draft the agreement together with (1) Summons and Complaint; (2) Request for Judicial Intervention; (3) Note of Issue; (4) An affidavit for you to sign and an affidavit for your spouse; (5) Findings of Fact; (6) Judgment of Divorce. After you sign the agreement and all other necessary documents, your attorney will file the papers with the Court. The Court will have to review the documents. If all is in order, the Court will sign the Findings of Fact and Judgment of Divorce.
Usually, your attorney can prepare all necessary documents within one week or so. However, once the papers are filed with the Court, generally, the Court will review the papers and sign the judgment anywhere between 4 to 12 months.
If your case is not settled, then the process will be longer. Depending on the complexity of the issues surrounding your divorce, a consented divorce may be finalized anywhere between 1 to 3 years.
In New York, the process of a contested divorce involves the following:
File and Serve the Summons and Complaint: Usually, one spouse will file a complaint with the Court requesting a divorce. The spouse, who files the complaint, is designated as the Plaintiff in the action. Within 120 days of filing the summons, the Plaintiff must ask a third-party to serve or hand deliver the summons and complaint to the other spouse. The other spouse is designated as the Defendant in the action.
Answer: The defendant, who has been served the papers, must file an answer to the complaint either within 20 or 30 days.
File a Request for Judicial Intervention (RJI): If the plaintiff and the defendant are unable to settle their divorce action, then one of the parties will file a form called Request for Judicial Intervention. Upon filing the RJI, the Court will assign a judge to your case.
File a Demand for Preliminary Conference: Usually the RJI will be accompanied with a Demand for a Preliminary Conference. This conference is the first court appearance you will make during your divorce action.
File a Net Worth Statement: Before the Preliminary Conference, both spouses must file a Net Worth Statement detailing all their income, expenses, assets and debts.
Attend the Preliminary Conference: During the Preliminary Conference, the parties and the Court will get together and attempt to narrow down the issues involved in the case. The parties and the Court will also schedule important dates during the proceeding.
Conduct Discovery: If there is no settlement, attorneys will gather relevant evidence to use for their client or against their clients’ spouse. The discovery may be lengthy if there are complex issues in your divorce case. But, generally, discovery may be completed within 6 months of the Preliminary Conference.
Go to Trial: When the case goes to trial, the parties will present evidence to the judge. At the conclusion of the trial, the judge will issue a decision and order.
Appeal (Optional): If you disagree with the Court’s ruling, you may file an appeal to a higher court.
CONTESTED DIVORCE DO’S AND DON’TS
Do not involve your children in the divorce.
Do not argue with your spouse. Your attorney will do the fighting for you.
Do not speak negatively about your spouse to or near your children.
Unless directed by your attorney, do not change the locks to your home.
Divorcing your spouse is an emotionally charged process. Try not to get overly emotional around your children: Their sense of insecurity is at stake.
Do not deny your spouse access to the children unless your attorney has advised you otherwise. Or there is a compelling reason to do so (i.e., domestic violence, abuse, etc.)
CONTACT CONTESTED DIVORCE ATTORNEYS AT STEPANIAN LAW FIRM FOR NEXT STEPS
Our firm provides every client with personal attention to their case. Since our office aims to find a timely resolution to your matter, you may have the opportunity to move past a difficult relationship.
Stepanian Law Firm could arrange for a favorable contested divorce outcome when you and your partner are separating. Our firm has convenient appointments in the evening and over the weekend, so if you would like to speak with a contested divorce lawyer specialized in Manhattan about your legal matters, contact our office today or call us at (646) 596-6874.