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Suffolk County Divorce Lawyer
Divorce is never an easy process. In any divorce matter, it is important to begin work protecting your rights as early as possible. The first step is to obtain the advice of an experienced divorce lawyer on Long Island. 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.
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. Common examples of marital property include:
- Houses / real estate
- Cars, boats, motorcycles or any other vehicles.
- Bank accounts
- Stocks or investments
- Pensions, 401k, accounts, 457 accounts, IRAs and all other retirement assets
- Cryptocurrency / bitcoin
- Precious metals such as gold, silver, etc.
- Businesses or professional practices
- Debts including student loans
The phrase marital property generally refers to any property acquired by either spouse during the marriage, regardless of which spouse holds title.
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.
Who Keeps the House in a New York divorce?
In Suffolk County divorce, as is the case for all of New York State, the division of the marital home, like other marital assets, is typically determined based on the principle of equitable distribution. Equitable distribution does not necessarily mean a 50/50 split; instead, the court seeks to divide property fairly and justly, taking various factors into account. Generally, the party who is awarded residential custody of the children will be awarded the home, contingent upon any number of factors including that party’s ability to maintain the costs of the home. Ultimately, the decision on who gets the house in a New York divorce can vary widely depending on the unique circumstances of each case. It’s essential to consult with an experienced family law attorney in New York to understand your specific situation, protect your rights, and navigate the complexities of property division during divorce proceedings.
Maintenance in New York Divorce
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.
Is Spousal Support Mandatory in New York?
Spousal support, also known as alimony, is not mandatory in New York. Whether spousal support is awarded and the terms of the support are generally determined on a case-by-case basis, taking into account various factors. In New York, the court has discretion when it comes to awarding spousal support.
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.
Do You Have to Be Separated In Order to Get a Divorce in New York?
In New York, parties are not required to live separately prior to filing for divorce or otherwise obtaining a divorce. New York introduced no-fault divorce in October 2010. In a no-fault divorce, neither party needs to prove fault or wrongdoing by the other spouse. Instead, the primary requirement is that the marriage has “irretrievably broken down” for a period of at least six months, without any requirement to have ever lived separately.
How Long Does it Take to Get Divorced in Suffolk County New York?
The time it takes to get divorced in Suffolk County, New York, can vary widely depending on several factors, including the complexity of the divorce, the level of agreement between the parties, and the court’s docket and scheduling. Generally, an uncontested divorce will be settled and processed far faster than a contested divorce. Once the parties reach an agreement, a stipulation of settlement along with the “uncontested packet” is submitted to the Clerk’s Office for review and signature by a judge. On the other hand, a contested divorce, especially one which requires a trial, will take far longer. Depending on the complexity of the matter, a contested divorce from commencement through trial and written decision may take several years.
Health Insurance During and After a New York Divorce
Health insurance coverage is an important consideration during a divorce in New York. When one spouse provides health insurance coverage for the entire family, including the other spouse and any children, this coverage typically continues during the divorce process. In New York, there are “Automatic Orders” which require the continued health insurance coverage during the pendency of the divorce action and ensure that existing health insurance coverage remains in place until the divorce is finalized. If the policy should otherwise change or be terminated, the spouses must notify each other and the court of any changes in health insurance coverage during the divorce process. This includes changes to the policy, such as canceling or modifying coverage. Once the divorce is finalized, health insurance coverage for the non-employee spouse will change. The non-employee spouse may be eligible for continued coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA) for a limited period, usually up to 36 months. This allows the non-employee spouse to continue the same health insurance coverage, but they must pay the premiums themselves, which can be more expensive than what was paid when part of a group plan. Additionally, the non-employee spouse may need to seek individual health insurance coverage through private insurance or through the health insurance marketplace established under the Affordable Care Act (ACA).
As it pertains to children, typically, the parent with the better health insurance plan may be responsible for providing coverage for the children. The agreement should specify the division of costs for premiums, co-pays, and other medical expenses.
What Are the Residency Requirements for a Divorce in New York?
In New York, in order to proceed with a divorce, the parties must establish residency requirements as follows:
- The parties were married in the state and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or
- The parties have resided in this state as husband and wife and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or
- The cause occurred in the state and either party has been a resident thereof for a continuous period of at least one year immediately preceding the commencement of the action, or
- The cause occurred in the state and both parties are residents thereof at the time of the commencement of the action, or
- Either party has been a resident of the state for a continuous period of at least two years immediately preceding the commencement of the action.
What Happens If My Spouse Does Not Show Up For a Court Appearance in a New York Divorce?
If the defendant (the spouse who did not initiate the divorce) in a New York divorce case does not show up or participate in the divorce proceedings, the court can still proceed with the divorce. This is known as a “default divorce.” Generally, this requires:
- Proper Service of Process: The plaintiff (the spouse who initiated the divorce) is responsible for properly serving the defendant with the divorce papers, including the summons and complaint or summons with notice. Proper service is essential to ensure that the defendant has notice of the divorce proceedings.
- Waiting Period: After proper service, the defendant has a certain period of time to respond to the divorce papers. In New York, the defendant generally has 20 days to respond if served personally.
- Failure to Respond: If the defendant fails to respond within the specified time frame, the plaintiff can request that the court enter a default judgment. This means that the court can proceed with the divorce without the defendant’s participation. Similarly, the plaintiff can request a default judgment if the defendant fails to appear in court for a scheduled appearance.
- Default Judgment: Depending on the issues of the case, the court may hold a hearing to review the plaintiff’s claims and determine whether they are valid. If the court is satisfied that the plaintiff’s claims meet the legal requirements for divorce, it can grant the divorce and issue a judgment of divorce.
- Terms of the Divorce: The court will also decide on issues such as property division, spousal support, child custody, and child support if these matters are part of the divorce case. The court’s decisions will be based on the information and evidence presented by the plaintiff, as the defendant did not participate in the proceedings.
It’s important to note that a default divorce means the defendant has forfeited their right to contest the divorce or the terms of the divorce. If the defendant has concerns about the outcome, they should seek legal advice and consider responding to the divorce papers within the specified time frame to have their voice heard in the proceedings.
Additionally, the specific procedures and timelines for default divorces may vary depending on the circumstances and the court’s rules, so it’s advisable to consult with an experienced family law attorney in New York for guidance tailored to your situation.
Divorce Lawyer Suffolk County, NY
Contact us now to discuss your Nassau or Suffolk divorce. We represent and assist clients with contested divorce and uncontested divorce. Get in touch with us through our online intake form or by phone at (631) 600-3295 to a top Long Island Divorce Lawyer.