Expert Advice When You Need It Most
Posted about 3 years ago. Applies to New York, 3 helpful votes, 1 comment
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The Pain of DivorceJust as a heart surgeon can only repair the physical aspects of a heart ailment, the courts are only a means for two individuals to legally terminate their marriage. The doctor, the court or the lawyer cannot be responsible for healing emotional wounds; that can only be done by the person who is suffering. Others can assist in the healing process, and although it is true to a certain degree that “Time heals all wounds,” the ultimate responsibility rests with the individual. 2
Starting The Healing ProcessFor this to happen, You need to be open to the various possibilities of healing, be it therapy, spiritual guidance, support groups, friends, or books. Whichever methods you choose, it is most important to open yourself up to the necessary process of healing your heart. Remember, other divorced people have not only “gotten through it,” but have also used the opportunity to take significant steps in their emotional and spiritual growth. That same opportunity awaits you. Going though a divorce is physically and emotionally demanding. To cope with the stress created by this major life transition, you need to take care of yourself. As you travel through the challenging process of divorce, you need to know that your feelings of both sadness and anger are normal and that although it won’t be easy, there is a light at the end of the tunnel. 3
What You’ll Be FeelingThe ways in which marriages end vary greatly. However, almost all marital endings have one thing in common — feelings of disappointment, anger, and resentment towards the person who did not fulfill your dreams and expectations. Denial can cause you to bury those feelings temporarily. But unless the pain is felt, it cannot be released. Denying your feelings can be compared to getting a thorn in your skin. You can cover it up, ignore it, or pretend that it does not bother you. The reality is that the thorn hurts, and the longer you let it stay embedded in you the more of an irritant it becomes. Over time, it can develop into an infection. Unacknowledged frustration and anger over your impending divorce will fester and infect your attitude in unrelated situations. Divorce is challenging enough without the added turbulence of burying your feelings. It is important to acknowledge and deal head-on with your pain. 4
What You’ll Be Feeling (Part II)A divorce can flood you with some of the most intense emotions you’ll ever feel. Such emotional turmoil can cause you to react in ways you never considered yourself capable of. During the times of greatest stress, you will find it difficult to sort out choices in your best interest for future happiness from those motivated by a strong urge for revenge. In the interest of healing, talk to yourself about how you are feeling. The more aware you are of your emotions, the clearer you become about your motives, making it much easier to make wise choices. Remind Yourself of who you are. Take steps to ensure that you do not compromise your future and live with regrets. 5
Developing The “New You”Being married has naturally altered your identity, blending it with that of your spouse. Both partners made compromises and assumed ne personality characteristics. When that melded identity dissolves, you need time to re-discover who you are. Give yourself a chance to heal. The length of the legal processes in a divorce action does not always go hand in hand with the length of time it takes to heal the emotional wounds of divorce. The healing begins only when you allow it to begin. Equally important, treasure what is good about yourself. Start by identifying strengths and traits that perhaps were not valued by your partner. Possibly you love to ski, or read novels, or hike, but felt guilty because your partner considered that activity a waste of time. What parts of yourself have remained dormant? Let your next new relationship be with yourself. Some individuals become involved in another relationship during the divorce proceedings. 6
Developing The “New You” (Part II)The emotional wounds of a divorce, left unattended, can continue to negatively influence your life. In order to gain control over your life, you must heal your heart. There are no shortcuts. One of the most important things you can do as you adjust to your divorce is to take responsibility for resolving your heartache. Taking responsibility through, does not mean you have to go it entirely alone. Don’t be afraid to admit that you need help to put yourself back together. A divorce is usually a traumatic experience. Coupled with the marital problems that led to the break-up of the marriage, no individual can be expected to overcome these difficulties alone. Do not be too proud to ask for help. The resources mentioned in the back of this guide are a starting point. They are designed to help people like yourself cope with the difficulties of a divorce. 7
AnnulmentAnnulment An annulment means that the marriage is considered void — that it never happened. In New York State, a marriage can only be annulled if it can be shown that the marriage was never legally entered into. Here are some of the circumstances which must exist for the granting of an annulment: A. A former husband or wife is still living and their previous marriage was not legally dissolved or annulled. B. One of the parties was below the age of 18 (the age of consent) at the time of the marriage, has not lived with the other spouse since becoming 18, and wants a divorce. C. Consent to the marriage was obtained through force, duress, or fraud, and the parties have not lived together as husband and wife since the discovery of the fraud. D. Mental retardation or mental illness at the time of the marriage, not known to the spouse; or incurable mental illness for five years. E. Incurable physical incapacity to enter into a marital relationship. 8
DivorceDivorce A divorce results in a complete termination of the marriage. In an annulment, the marriage is voided — it is said to have not been proper in the first place, and thus it is considered as never having happened. It should be noted that we are discussing civil annulment from his or her house of worship according to that particular person’s faith. The Courts have no power in matters concerning religious annulments. However, a civil divorce or annulment must first be obtained before a religious annulment will be granted by the appropriate leaders of the person’s religious denomination. 9
Separation?A divorce by separation, commonly referred to as a “conversion divorce,” is the only true “no-fault” way to obtain a divorce in New York State. In order to obtain a legal separation, you and your spouse must enter into an agreement that settles all the outstanding issues of the marriage — custody, visitation, child support, maintenance, division of assets, etc. Once the agreement, called the Separation Agreement, is signed and notarized, it is filed with the county clerk’s office. To obtain a valid conversion divorce, the parties must live separate and apart from each other for one year under the terms of the agreement. After the year has passed, either party may start proceedings to convert the separation agreement into a final divorce. Some people choose to wait several years before converting their separation agreement into a divorce. There is no automatic conversion; the parties must initiate the divorce process after a year or more of living apart. 10
What are grounds for divorce in New York State?In order to obtain a divorce in New York you must prove “grounds.” Your suit for divorce must assert wrongdoing or fault. In New York, couples cannot get a divorce because they simply do not love one another any more or are incompatible. Although irreconcilable differences are grounds in many states, such is not the case in New York State. The following constitute grounds for divorce in New York: 11
Cruel And Inhuman TreatmentCruel And Inhuman Treatment Cruel and inhuman treatment involves either physical or mental cruelty. For a divorce, the pattern of treatment of one partner by the other must have such a serious effect on the physical and/or mental health of the divorce-seeking spouse that it is not safe and proper fo the parties to continue to live together. Cruel and inhuman treatment for a divorce consists of a pattern of behavior that includes such things as repeated physical attack on a spouse, constant screaming, verbal abuse, gambling away household funds staying away from the house too often without explanation, going out with another man or woman, or wrongfully accusing the other spouse of adulterous relations. There have been New York cases where all these things have on their own been considered “cruel and inhuman treatment.” Ultimately, however, it is up to a judge to decide as to whether or not your situation constitutes cruel and inhuman treatment. 12
Cruel And Inhuman Treatment (Part II)In general, the longer the marriage, the more substantial the abuse must be to pass the muster of the court. Alcoholism by itself is not sufficient grounds for a divorce based upon cruel and inhuman treatment, unless the spouse becomes cruel or violent when intoxicated. Mental illness is similarly not sufficient grounds for divorce, unless it causes cruel and inhuman behavior. Each case stands on its own facts. The Court in its discretion decides whether or not the facts in the case justify dissolution of a marriage. The acts or conduct on which the divorce is based must have occurred within 5 years prior to the start of the divorce action. 13
Abandonment For One or More YearsAbandonment For One or More Years There are two different types of abandonment. The first is actual abandonment, which means that your spouse has intentionally left the marital home without your consent and you did not force or lock your spouse out of the house. You must also prove that your spouse did not have good reason for leaving, such as ill treatment or your consent, that your spouse left with the intention of never returning, and that your spouse did not offer in good faith to return. Leaving for a short time in order to calm things down or to visit family or friends is not itself abandonment. “Constructive abandonment” is unjustified refusal for one year or more by the other spouse to engage in sexual relations. Although not found in the law books, this is an offshoot of the abandonment ground that has behaved resided together for that year and the refusing spouse must have been physically able to engaged in sexual intercourse, if he or she had so desired. 14
Imprisonment For Three or More YearsImprisonment For Three or More Years Divorce on the grounds of imprisonment for three or more years means that your spouse must have served three or more years continuously in prison prior to the commencement of the divorce action. The grounds for divorce and the divorce itself are valid even if the conviction on which the imprisonment ground is based is later overturned or reversed. 15
AdulteryAdultery Bringing an action based on adultery is difficult and is usually done by circumstantial evidence— by showing that your spouse had the opportunity, inclination and intent to have sexual intercourse with another person. Since you cannot testify against your spouse, you must have a witness. Adultery is not a valid ground for divorce if it is shown that you encouraged or consented to the adultery, or that you forgave your spouse (having sexual intercourse with your spouse sometime after having learned of the adultery is a primary example of forgiveness), or that you also engaged in adultery, or that five years or more have elapsed since the discovery of the adultery. Adultery can be a difficult ground to prove. Therefore, it is often combined as part of a spouse’s claim of cruel and inhuman treatment. 16
Divorce Mediation as an alternative (Part 1)Divorce mediation seeks to resolve the same issues as are handled by negotiations between opposing attorneys or by the trial court, but instead of using attorneys and courts, both parties employ the use of a single mediator to settle the issues in a case. Divorce mediation is not always a viable alternative for every couple. In order for such a process to work, both parties must be willing to listen to one another and to the mediator. They must to some degree be flexible in their position and respectful of each other’s needs. Unfortunately, the resentment cause by a bad breakup leading to the end of a marriage rarely provides for an atmosphere of cooperation. Mediation by definition is the process of bringing in a neutral third party to help two disputing parties come to a mutually agreeable settlement. The mediator does no individual counseling. 17
Divorce Mediation as an alternative (Part II)The mediation role is limited to (1) proposing basic ground rules for the parties to keep them in a process of negotiation and settlement that is productive; (2) helping the parties to clarify and define the issues which are relevant and need to be addressed; and (3) exploring alternative solutions so spouses can come up with a settlement that best fits their particular interests and circumstances. The end goal of mediation is to have the parties reach an agreement. Since a mediator may be a lawyer by degree, it is necessary to employ an attorney to finalize the divorce. If the mediation was successful, the divorce should be an uncontested one. The cost of such a divorce should be only a fraction of what a contested divorce would cost, since all the attorney really needs to do at that point is prepare paperwork to submit to a court to be finalized. 18
Divorce Mediation as an alternative (Part III)The cost of a mediated divorce typically ranges from $2.500.00 to $3,500.00 and varies depending upon the number of issues and the overall complexity of the case. Compared to a contested divorce where each party may spend from $3,500.00 to $7,500.00, just for an initial retainer fee for representation, there is no doubt that mediation is the more economical alternative. The cost of a mediator can also vary, depending on the mediator’s experience and credentials. This general price range should be a helpful guide to those looking for mediation in the Long Island area. Be sure that the mediator discloses the total cost of his or her services, including filing and Court fees. In some cases, there may be disbursements for professional to value a home or a business. Questions about the necessity and possible price range of these fees should be part of your list of questions when interviewing perspective mediators or attorneys. It may come as a surprise that there are no requirements 19
Divorce Mediation as an alternative (Part IV)A mediator is most effective when he or she has both an education in the law and in financial matters. Although being an attorney myself, this may sound somewhat biased, I believe that the best mediator will often be one who is financially astute and also an attorney. As already mentioned, a mediator who is also a practicing attorney cannot act in both capacities at the same time. However, an effective mediator well versed in the nuances of matrimonial law and financial planning can provide the highest competence in mediating a settlement between two individuals. As with all things in life, only someone who concentrates in a particular area can truly be called competent in that area. A matrimonial attorney who is also a mediator is such a professional, since he or she is well-educated, experienced, and versed in the ever-changing field of divorce law. 20
How Do I Start A Divorce Action?One party files a divorce summons, with a complaint that states the grounds for the divorce, in the State Supreme Court of the county in which they live. The place for filing your paperwork is at the clerk’s window in the Supreme Court. The clerk stamps the summons and assigns it an index number. It is not required that parties have an attorney prepare and file their papers, but it is advisable due to the complex nature of divorce paperwork. A copy of the divorce summons must be personally served on your spouse. However, the filing spouse cannot be the one to serve it. The summons must be served within 120 days from when it was initially filed, or else it will expire and a new set of divorce papers will then have to be filed. Litigants can ask the Court to extend the 120-days limit; however, “good cause” must be shown. 21
What happens after my spouse is served with divorce papers?After your spouse is personally served with the papers, he or she must respond within 20 days. If they do not respond in 20 days of being served, then they are in default. A default judgment may be granted by the court. This allows you to get a divorce and request a settlement of the case on your own terms; of course, those terms must be reasonable. However, if the other party chooses to appear in the action, both spouses must then negotiate a settlement or prepare to proceed to an eventual trial to finalize the case. • If an agreement can be reached, the settlement will become a court order dissolving the marriage. • If an agreement cannot be reached, the case goes to trial, which can sometimes be a long and expensive process. 22
Does it matter who files for divorce?Whichever spouse files first has both a psychological and a financial advantage. Research indicates that spouses who make the decision and file first for divorce feel more in control of their lives. They are better equipped to deal with the strains and stresses of divorce. 23
How Long Does a Divorce Take?The answer often depends on several factors, including the length of the marriage, finances of the parties, complexity of the case, and the emotional state of the parties. Divorce cases typically last case anywhere from three months to a year. However, divorce is a very emotional time for most people, often leading one or the other spouse to become vengeful. In such cases, a divorce can last more than a year. In most divorces, assuming the parties are reasonable and settlement by negotiation can be accomplished by skilled attorneys, it should take no longer than six months to complete. Once the spouses reach an agreement, settlement papers are sent to a judge to be reviewed and signed. Once the judge has put his signature to the papers, the divorce is officially granted soon after. 24
I Want a Divorce, but Am Not Sure I Have the financial Means?Your lawyer can obtain a court order for temporary spousal support during the divorce process. This is true even if you’re not eligible for spousal support (formerly referred to as alimony) or child support after the divorce is finalized. Your lawyer can even petition the court to order your spouse to continue paying the mortgage, taxes, homeowners’ insurance and carrying charges on the home (electricity, fuel, water, etc.), as well as continuing to maintain your automotive and health insurance policies. Until the divorce is finalized, you should pay only what is necessary on your outstanding bills. The settlement will determine who is responsible for debts incurred while you were married. Generally, spouses are liable for their own debts incurred after a divorce is filed (which may not be the same date as when they physically separated). 25
I Want to Stay in My Home During the Proceeding, but My Spouse Refuses to Leave. What Can I Do?Your lawyer can petition the court to allow you to sole possession of your home until the divorce is finalized. If your spouse threatens you with violence or physical abuse, you can ask for an Order of Protection, which can in some cases prohibit him or her from going near your home. Not all Order of Protection exclude the other spouse from the home. This is only given in cases where there has been a serious incident of abuse or a number of such incidents. 26
How Much Does a Divorce Cost?No matter how simple or complicated your divorce, there is a good chance you will need a lawyer. The amount it will cost you depends on the complexity of your case and the number of hours spent on the case and number of hours spent on the case by your attorney. How much does it cost to have surgery? To remove a small wart from your hand does not cost much. However, to do a complicated procedure involving many hours in the operating room is far more expensive. You should discuss all fees that are expected when you meet with an attorney. Although no attorney can tell you the exact cost of your divorce, he or she should be able to give you a fair estimate based on your consultation with the attorney and his or her experience with similar cases. Do not be afraid to ask about possible costs of a case under various circumstances, such as how much it will cost if the case is settled versus the cost of a trial if necessary. Generally speaking, short-term marriages that do not involve chi 27
What do you tell your children?Explaining divorce to children can be excruciatingly painful. There is no “right” way, and methods may vary from family to family. The best idea is to look around for a book you feel comfortable with, or one that is recommended to you by a friend. These three suggested books may help you get started on your search: Let’s Talk About It: Divorce Fred Rogers (G.P. Putnam, $7.95) Fred Rogers, better known as television’s Mr. Rogers, guides children gently through the kinds of feelings they may experience — anger, sadness, and hurt about divorce. When Divorce Hits Home: Keeping Yourself Together When Your Family Comes Apart Thea and Beth Joselow (Avon, $11) When Thea Joselow’s parents were going through a divorce, she searched for helpful books, but found none. She and her mother wrote this book based on interviews with young adults who had been through divorce and who share advice about such problems. Vicki Lansky’s Divorce Book For Parents Vicki Lansky (Book Peddlers, $5. 28
DEALING WITH DOMESTIC VIOLENCEEach year, more than one million women seek medical assistance for injuries caused by spousal abuse. Domestic violence is one of the ugly truths accompanying a great many divorces. It occurs in at least two out of every three marriages, among all races and socio-economic groups. Following is a list of several groups, agencies and organizations that can provide support to spouses who are victims of abuse: Police Emergency Dial 911 The police should be called in any type fo domestic dispute. The police not only can prevent further problems, and can also provide you with a “domestic incident report” as evidence of their being called to help. Long Island Women’s Coalition (631) 666-8833 (24-hour Hotline) The LIWC offers shelter to women and children of abuse, support groups, court advocates and attorney referrals. The LIWC also has advocates at each police precinct in Suffolk County to assist women who are victims of abuse and may not know their way around the legal system. 29
How to choose the "right" lawyer for you!One of the most important decisions you will make in your divorce proceedings is choosing the right attorney to represent you. Your family attorney may be able to point you in the direction of a lawyer who is experienced in matrimonial law. However, the best sources of information are often acquaintances who have been through divorces themselves. Learning about someone else’s experiences will show you who and what to look for, and what to avoid. Local Organizations such as the Long Island Woman’s Coalition and the National Organization for Women can often recommend an experienced attorney who has represented individuals referred by such groups many times over the years. You will have a great deal of contact with your attorney. You will want to find someone who is responsive to you, sympathetic to your needs, within budget, and at the same time a person with whom you can communicate comfortably. An important consideration in choosing the right attorney is whether the lawyer you s 30
How to choose the "right" lawyer for you! (Part II)A retainer agreement (a contract between an attorney and a client), spells out the terms of representation. It contains all of the financial terms of the attorney-client relationship. This includes what causes of action are included in the representation, what is billable, at what rate, and other facets of the relationship that it is important you to know. Retainer agreements should always be in writing, with a copy given to you. The retainer agreement is a contract, requiring specific performance from both the client and the attorney. In return for payment, your lawyer’s duties and responsibilities are spelled out. This way each knows from the outset what he or she has a right to expect from the other. Never sign a retainer agreement without reading it carefully. If there is anything you don’t understand, have it explained. Keep asking until you understand what you are signing. The following guidelines will help: 31
How to choose the "right" lawyer for you! (Part III)Things to Look For and Ask About 1. What does the retainer fee cover? It is a fee you pay in advance on a lawyer’s billable hours. Ask what happens when the retainer is used up. Will you be billed a lump sum, or put on a payment plan until the divorce action is final? Although divorce costs vary, depending on the complexity of the case, you need to have an estimate of what it will cost for the attorney to complete the case. 2. What is the cost-per-hour for your attorney, associates paralegal, and court appearances? Different staff members are billed at different rates. Ask which staff member perform which work. 3. What other costs will there be above and beyond the legal fees? A divorce action involves court filling fees, process server fees, travel, telephone costs, and photocopying, to name a few. These expenses may not be included in your legal fees and may be extra. Find out how much they are and when they have to be paid. 4. “Results obtained.” These words, or a varia 32
Preparing for your divorceAfter you have decided to pursue a divorce, there is preparatory work that should be done. The following are some of the things you should be working on. 1. Gather copies of all financial records: Pay stubs, tax returns, bank account statements, investment records, deeds or other property ownership records, pension plan statements. 2. Make photocopies of all important records. Anything of a financial nature may be helpful to your divorce. 3. An accounting history will be needed as a basis for your final settlement. In preparation, track your monthly expenses, using checkbook receipts for the past six months. 4. Keep a detailed diary of any and all incidents of physical, verbal or emotional abuse. 5. Stay informed –- read everything you can about divorce, attend seminars, and talk with other people who have been through a divorce. 6. Start preparing for your financial independence. Begin to establish credit cards in your own name. Open your own savings and checki Additional ResourcesHELPFUL RESOURCES
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