Long Island Divorce Lawyer – Huntington, NY
Divorce is never an easy process. In any divorce matter, it is important to protect your rights as early as possible. The first step is to obtain the advice of an experienced divorce lawyer. The decisions you make at the time of separation and during the divorce process are critical to your rights and most likely the outcome of your case. Most people going through a divorce have many questions are not sure what the divorce process entails. Whether you are seeking a lawyer for a contested divorce or an uncontested divorce lawyer, we can help. We are also proud to represent clients in same-sex divorces.
Contested Divorce vs. Uncontested Divorce in New York
There are 2 types of divorce cases – contested divorces and uncontested divorces.
An uncontested divorce is one in which the Defendant-Spouse (the party who did not initiate the divorce) is not opposing the dissolution of the marriage or any of the ancillary issues such as child custody, visitation, child support, equitable distribution of property, spousal maintenance (alimony), etc. These issues can be resolved in a Stipulation of Settlement after either traditional negotiation or through mediation.
A contested divorce is one in which the spouses cannot agree upon the dissolution of the marriage or the above-mentioned ancillary issues. A contested divorce can become uncontested if all the issues are eventually resolved by the parties in a Stipulation of Settlement (sometimes known as a Settlement Agreement). If these issues cannot eventually be resolved, the court will hold a trial and issue a ruling on all issues.
Grounds for Divorce in New York State
Regardless of whether it is a contested divorce or an uncontested divorce, in order to obtain a divorce in New York State, the Plaintiff-Spouse (the spouse who filed for the divorce) must have “grounds” – meaning that there must be a legally-recognized reason for the court to grant the divorce.
Grounds for divorce include:
- Cruel and Inhuman treatment
- Abandonment (either physical or constructive)
- Imprisonment of the Defendant-Spouse for 3 or more consecutive years
- Living separate and apart pursuant to a separation judgment or decree
- Living separate and apart pursuant to a separation agreement
- Irretrievable breakdown in the relationship for a period of at least 6 months. This is commonly known as a no-fault divorce. New York does not recognize irreconcilable differences as grounds for a divorce but irretrievable breakdown is very similar.
In addition to dissolving the marriage, what does the divorce do?
A divorce can resolve the following issues:
- Child Support
- Equitable Distribution of Marital Property
- Spousal Maintenance (Alimony)
Equitable Distribution of Marital Property
It is important to realize that equitable distribution DOES NOT mean equal distribution. Generally, marital property is distributed equally between the spouses but the court has the power to grant more property to one spouse over the other.
The phrase marital property generally refers to any property acquired by either spouse during the marriage, regardless of which spouse holds title. Marital property also includes intangible assets such as a spouse’s enhanced earning capacity (often derived from a degree, education, training or a professional license) or entitlement to a pension.
Marital property, as opposed to separate property, can be distributed in a divorce. Separate property cannot be distributed.
Common examples of separate property include:
- Property obtained prior to the marriage
- Anything defined as separate property in a prenuptial agreement
- Compensation for personal injuries
Equitable distribution of a pension or retirement account
A QDRO (Qualified Domestic Relations Order) is a court order that re-apportions either a percentage or a specific amount of money from a pension to the former spouse. Generally, a QDRO is used to distribute a pension or retirement account. For example, if Spouse A has earned a pension and Spouse B is entitled to half of the pension under equitable distribution, the court will issue a QDRO to assign Spouse B his or her share.
Maintenance (what was once known as alimony) is defined by New York’s Domestic Relations Law as “payments provided for in a valid agreement between the parties or awarded by the court, to be paid at fixed intervals for a definite or indefinite period of time, to meet the reasonable needs of a party to the matrimonial action.”
The purpose of maintenance is to attempt to sustain the pre-separation standard of living enjoyed by the parties.
Maintenance can be either durational or permanent, meaning that a spouse will be obligated to make payments for either a fixed period of time (durational maintenance) or until the death of one of the spouses (permanent maintenance).
In determining the amount and length of maintenance, the DRL requires the court to consider the following factors:
- the income and property of the respective parties including marital property distributed in the divorce
- the length of the marriage
- the age and health of both parties
- the present and future earning capacity of both parties
- the need of one party to incur education or training expenses
- the existence and duration of a pre-marital joint household or a pre-divorce separate household
- acts by one party against another that have inhibited or continue to inhibit a party’s earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law
- the ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefor
- reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage
- the presence of children of the marriage in the respective homes of the parties
- the care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party’s earning capacity
- the inability of one party to obtain meaningful employment due to age or absence from the workforce
- the need to pay for exceptional additional expenses for the child/children, including but not limited to, schooling, day care and medical treatment
- the tax consequences to each party
- the equitable distribution of marital property
- contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party
- the wasteful dissipation of marital property by either spouse
- the transfer or encumbrance made in contemplation of a matrimonial action without fair consideration
- the loss of health insurance benefits upon dissolution of the marriage, and the availability and cost of medical insurance for the parties
- any other factor which the court shall expressly find to be just and proper.
Can’t find a spouse or need confidentiality?
A divorcing party may sometimes require special measures before even addressing the merits of a case. For instance:
- Motions to allow “service by publication” – instead of personally serving your spouse with divorce papers, the court may permit you to publish an advertisement in a newspaper.
- Motions to allow “substitute service” – instead of personally serving your spouse with divorce papers, the court may permit you to serve someone connected to your spouse.
- Motions keep your address and contact information confidential from your spouse.
These issues are commonplace in divorce and an attorney will be able to assist you locating your spouse, arranging for service of the documents on your spouse, making a motion for “substitute service” / “service by publication” or making a motion to keep your contact information confidential.
You may be asking yourself “Do I Need an Attorney for Divorce?”
As a Long Island divorce lawyer, Louis Sternberg has handled contested divorces and uncontested divorce with competence, compassion and personalized attention. Hiring an attorney early in the process often prevents the mistakes that occur when parties to divorce represent themselves before the court. We know this because we handle many cases where individuals have tried to handle their divorce themselves and later came to us when they could no longer navigate their way through the legal system. Getting legal help early in the process can help avoid a lot of the mistakes make my clients early in the process and the stresses that accompany those mistakes.
Divorce Lawyer Suffolk County, NY
We were recently rated as 2nd Place in the Best Divorce Attorney Award from the Long Island Press’ Best of Long Island for 2014.
Contact us now to discuss your Nassau or Suffolk divorce. We represent and assist clients with contested divorce and uncontested divorce. Call the Law Office of Louis L. Sternberg at 631-600-3295, or use our online contact form to speak to a Huntington Divorce Lawyer.