Matrimonial/Divorce

Making the Decision to get a divorce is perhaps one of the biggest decisions you may make in your life. The decision to dissolve your relationship with someone you once loved so much you committed yourself to them is quite difficult. It is a decision that should be made thoughtfully and deliberately.

Attorney Jason Henskee often tells clients that divorce is not the only option. Sometimes counseling or other types of therapy may resolve the underlying issues that move couples toward a divorce. Sometimes a legal separation resulting in some time away from each other creates a new appreciation for one’s spouse.

If you have come to the point where you are consulting with an attorney about a divorce then that first consultation should count. It should be informative, educational, empowering, and leaving you feeling with some hope.

A first consultation for a potential divorce action is unique compared to first interviews for other areas of law. Attorney Jason Henskee begins each consultation by gathering information about a potential client, identifying the issues particular to your case, discussing your ultimate goals and expectations, discussing your options, the anticipated time frame, and finally costs, fees, and payment options.

If a client does ultimately retain Attorney Jason Henskee, the law requires that a comprehensive retainer agreement and a notice of client’s rights and responsibilities be reviewed and signed by the client and attorney. The client will then be provided with a statement of net worth which is a comprehensive financial affidavit which should be completed prior to the next court date. A letter of engagement is then sent to the client reminding him or her of the next court date, what to expect, and what documents and/or information should be obtained in anticipation of the next court appearance.

There are 7 grounds for commencing a divorce action in the State of New York. The various grounds for divorce are set forth below. However, the most common and perhaps the most civil grounds for divorce is “Irretrievable Breakdown”.

  1. Irretrievable Breakdown: The relationship between you and your spouse has broken down irretrievably for at least six months.
  2. Cruel and inhuman treatment: “Cruel and inhuman treatment” by your spouse. This means that your physical or mental health is in danger if you continue living together. However, if the abuse happened more than 5 years ago its not a valid basis.
  3. Abandonment: Your spouse “abandons” you for at least a year. This means that your spouse has left you or made you move out and does not intend on returning.
  4. Imprisonment: If your spouse goes to jail for three or more years. However, if your spouse was released more than 5 years ago, you cannot divorce for this reason.
  5. Adultery: your spouse commits adultery. However, you cannot use this as a basis for divorce if you: encourage your spouse to commit adultery, forgive your spouse by having sexual relations with them after you discover the adultery, or commit adultery yourself, or if the adultery occurred more than 5 years since you discovered it.
  6. Judgment of Separation: You and your spouse have not lived together because of a “Decree of Separation” or “Judgment of Separation”, given by the Court, for at least one year. You have to abide by all the conditions of the decree or judgment. This is an unusual grounds for divorce, but it does occur from time to time.
  7. Separation Agreement: You and your spouse have not lived together because of a written “Agreement of Separation” for at least one year. This is typically called a “conversion divorce”. Again you must obey all the conditions of the agreement.

There are residency requirements in order to obtain a divorce in New York. You cannot just move here from Florida or Alaska and get a divorce. In order for New York to exercise its power to have jurisdiction over a divorce at least one of the spouses has to be a resident of New York. In most cases, one of the spouses must have lived in New York for at least one year before trying to get a divorce.

Once grounds for divorce and residency have been established an “action for divorce” can be commenced. This usually begins by filing a “summons & notice”, sometimes with a complaint. There are of course costs associated with obtaining an index number, Request for Judicial Intervention (RJI), and filing fees, in addition to eventually obtaining a certified copy of your final divorce decree. Plan on setting aside approximately $350.00 to $400.00 for these disbursements.

Depending on how the “defendant spouse” is served, “personal service” vs. “substituted service” that person will have 20 days for personal service and 30 days for substituted service to respond to the summons and notice.

While the parties can choose to represent themselves (pro se litigants) it is not advisable as divorce actions require a great deal of time, effort, and paperwork. If your spouse is represented by counsel then it would be unwise to not have an attorney protect your rights and advocate for your position.

Attorney fees vary from attorney to attorney and depend on numerous variables including but not limited to whether the matter is contested or uncontested, whether children are involved, the amount and value of assets, retirement and pensions, among other such issues. Attorneys are however bound by ethical rules that prohibit an attorney from charging an unreasonable fee. This ethical rule considers the difficulty of the case, the attorney’s experience and knowledge, and the amount charged in the particular area where the attorney practices. For example a divorce in New York City will certainly cost more than one in Upstate New York because New York City Attorneys by virtue of the area charge higher fees.

New York case law holds that one spouse may be ordered to contribute towards the other spouses attorney fees. The rational for this is because each side should be on equal footing when going through a divorce. For example if a husband makes $100,000.00 a year and his wife has sacrificed her career to raise the children and take care of the home, then the court will likely order the husband to either contribute or completely pay for the wife’s attorney.

Some of the usual and primary issues that are addressed in a divorce include the following:

  • Distribution of Property
  • Payment and Responsibility for Debt
  • Whether to sell or buy out the other spouse for the Marital Property
  • Pensions and Other Investments
  • Custody and Visitation
  • Child Support
  • Spousal Support

New York law holds that property should be divided equitably, otherwise known as equitable distribution. This means that the court divides the marital property as fairly as it thinks is possible. Most of the time that means 50/50, although there are other factors that effect the division of property such as the length of marriage and pre-marital assets.

One of the most important things that you may have some control over and most attorneys may not want to tell you is that the more reasonable, flexible, and civil you can be with your spouse the less money you will have to pay the attorneys. The fact is, divorces tend to be expense. You can minimize the costs by being willing to compromise. For example fighting over power tools or the dishes will probably cost you more than it would to just go out and buy new ones. Some times both parties are understandably so attached to a pet, especially dogs, that they will spend significant sums of money in an effort to keep the pet. The courts have actually come up with other creative solutions as it pertains to pets, such as access and visitation schedules.

The disparity of income in the relationship will also dictate certain things such as child support and maintenance. The higher earning spouse will have to contribute and/or pay more than the lesser earning spouse.
Although the issue of child support is discussed at more length under the Family Law section of this site, you should be advised that child support is almost invariably a part of a divorce. The amount of child support paid is dependent upon the non-custodial parent’s adjusted gross income with varying percentages based upon the number of children. The amount of support is typically set under the Child Support Standards Act (CSSA).

If you are considering a divorce Attorney Jason Henskee welcomes you to discuss your case with a free 30 minute consultation to discuss your options and provide you with some information regarding your case. Additional time or a lengthier consultation would require a small fee.