Divorce Process
Uncontested Divorce
An uncontested divorce is one in which parties reach a written agreement on all issues without court involvement. The agreement is called a separation agreement. This comprehensive agreement is prepared by lawyers and covers all aspects of the marital relationship including custody, child support, alimony (now called maintenance) and property distribution. Once a separation agreement is signed, the parties usually proceed to an immediate divorce on the grounds of the marriage being irretrievably broken. An uncontested divorce is almost always less expensive and quicker than a contested divorce.
Even in a contested case, the parties can settle their case by entering into a stipulation of settlement. Once the stipulation is signed, the parties can proceed to obtain an uncontested divorce.
Contested Divorce
Divorces can be either contested or uncontested. A contested divorce is one in which the parties cannot agree, and the court is needed to decide issues such as custody, child support, maintenance and division of property.
A contested divorce begins with the plaintiff filing a summons and complaint and having a copy served on the defendant. The defendant then files an answer. After these documents are served, either side can ask to court to hold a preliminary conference. At the conference, both sides must be present, together with their attorneys. The court will enter a preliminary conference order, which sets forth a schedule for the parties to exchange financial documents and information.
After compliance with the preliminary conference order, the plaintiff will file a form called a note of issue, which states that the case is ready for trial. The court will hold a pre-trial conference and then schedule a trial date.
The trial takes place without a jury. After the trial is over, the Judge will issue a written decision. That decision is then incorporated into a judgment of divorce.
Most cases do not go all the way to trial. A settlement is possible at any time during the process, but frequently occurs just prior to trial.
MEDIATION
Divorce mediation can be a viable alternative to the divorce process, which is time consuming, difficult and expensive. Mediation requires a commitment from both sides to make the process work. In addition, the choice of mediator can be problematic. Generally, the mediator should have knowledge of divorce law and should have some negotiation training. Often, a social worker or psychologist can be helpful. The goal of the mediation process should be to arrive at an agreement which can be incorporated into a separation agreement.
COLLABORATIVE DIVORCE
Collaborative divorce is similar to mediation, except that each party retains a lawyer for the process. The lawyers agree that they will not represent their clients if the matter proceeds to litigation. The parties meet and attempt to obtain a consensual settlement agreement. If they are able to do so, the parties then proceed to obtain an uncontested divorce.
GENERAL INFORMATION
FAULT
Generally, fault is not a consideration in distributing the marital assets. So the fact that one party is responsible for the breakup of the marriage is generally considered irrelevant. Put another way, the party that caused the breakup of the marriage is not penalized financially in the distribution of property.
GENERAL
Even if you do not want to get divorced, your spouse can obtain one. In 2010, the legislature added a ground for divorce based upon one party alleging under oath that the marriage has been irretrievably broken for a period of six months or more.
For the most part, divorce is a financial process. The parties marital property is distributed in an equitable (not necessarily equal) manner. Marital property is generally considered to be any property acquired during the marriage. Special rules govern the distribution of the value of businesses and pensions. Separate property, which is generally inherited property or property owned prior to marriage, is not subject to distribution in a divorce.
In addition to property, the court will also determine child custody, child support, maintenance and attorney’s fees.
POST DIVORCE PROCESS
RELOCATION
Whether or not a custodial parent can move away with a minor child (over the objection of the non-custodial parent) depends on the circumstances of each individual case. Generally, the parent requesting court permission to move must have a legitimate reason for the move. A desire for a “fresh start” in another state is generally insufficient. The Court will grant permission if, after a hearing, it finds that the move is in the best interests of the child. The fact that a separation agreement contains language prohibiting such a move is not determinative.
CHILD SUPPORT MODIFICATIONS
Despite any language in a separation agreement or stipulation of settlement, a court may entertain an application for an increase in child support at any time. Generally, a court will grant an increase if it finds that the needs of the child are not being met, or there has been a change in circumstances of the parties. If an increase is granted, it will be retroactive to the date the application was first filed with the court. An increase can be granted by either the Family Court or the Supreme Court.
A court may grant a decrease in child support if it finds that the payor party is financially unable to comply with the existing order of support. The inability to pay must not be of the party’s making. In other words, a party voluntarily quitting his or her job is not entitled to a decrease in support. While courts are reluctant to reduce child support, they will do so when a party’s financial circumstances have materially worsened.
MAINTENANCE MODIFICATIONS
It is extremely difficult to obtain a modification of a maintenance obligation. In order to do so, a court must find that the payor is experiencing extreme financial hardship. This standard requires a very high level of proof. As a result, most applications to modify maintenance orders are denied.
ENFORCEMENT
The failure to pay child support is a recurring problem in family law litigation. The recipient spouse has a number of options. These include hiring an attorney to try to collect support, filing a petition in Family Court or filing in Supreme Court. If the support is paid through the local Support Collection Unit, the failure to pay support will result in the suspension of drivers and professional licenses. The payor’s paycheck can be garnished as well. In addition, if the support order is paid through New York State Support Collection, the order may be reviewed every three years for purposes of cost of living adjustments.