Brian D. Perskin & Associates

Social Media: Friend or Foe during Divorce?

Is Social Media Bad for your Divorce?

Social media; you either love it or you hate it. But regardless of your personal opinions on the matter, social media will have a major effect on your divorce case.  How you handle your individual accounts will help to determine if  social media will be your friend, or foe, during divorce.

Social Profiles Spell Disaster for Marriages

Believe it or not, researchers have found that social media use can lead to divorce. In a study conducted by universities in Boston and Chile, researchers found that there is a direct correlation between social networking use and marriage quality.

Scientific Study Proves Social Media Can Lead to Divorce
Scientific Study Proves Social Media Can Lead to Divorce

The amount of time spent on social media isn’t the only reason why the platforms may spell disaster for your relationship. Sites like Facebook, Instagram, Twitter, and Snapchat can be a catalyst for infidelity and jealousy. The temptation to have an affair can be strong if your marriage is already strained, and these platforms make it easier to stray.

Social Media and Hidden Assets

Social media is changing the legal landscape. In addition to being cited as a reason why couples file for divorce, it can also be used as evidence during your case. This rings especially true if one spouse suspects that their ex is hiding marital assets.

Hidden assets often surface during the discovery phase of divorce. Most users won’t list their income in their profiles, but they will post photos of vacations or expensive purchases. These photos will be used as evidence of additional assets, which usually results in a higher net worth. And, of course, a higher net worth impacts every aspect of divorce, especially child support and equitable distribution.

Successfully proving that assets are being hidden or squandered away is not easy, and requires the expertise of a seasoned divorce attorney. Luckily, we have experience successfully uncovering hidden assets by auditing an opposing party’s personal and business networking accounts.

Tips for Using Social Media

It’s hard to avoid social media all together, even during heated divorce actions. How can you play it smart, while still keeping an active social media presence?

  1. Double check your privacy settings- make sure your profiles are friends only.
  2. Change your passwords, so your ex won’t be able to log into your accounts.
  3. Avoid posting pictures or updates that your ex can use to make a judge think you are a bad parent.
  4. Never cyber stalk your ex, their new partner, or family members.
  5. Remember: the internet is permanent. Use common sense. If you have to second guess whether or not you should post, don’t do it.

We know that social media plays a prominent role in your day-to-day life, but that doesn’t mean it needs to negatively impact on your divorce. Be smart about your online presence during the course of your action, and hire an attorney to handle the rest of the case for you.

Social media is a very powerful tool, which can be helpful if harnessed correctly. For more information on divorce in New York, contact Brian D. Perskin & Associates P.C. today!

Legal Separation in New York: an Alternative to Filing for Divorce

Can I get remarried if I'm legally separated?

New Yorkers looking to part ways with their spouse have three options: divorce, annulment, or legal separation. When you’re dating and you want to take a break from your relationship, it’s easy. But when you’re married? Not so much. Can a legal separation help you avoid the hardships of divorce?

Legal Separation vs. Divorce

Many people don’t realize that divorce and legal separation are two different things, each with their own benefits. A divorce terminates a marriage, and often involves a lengthy court action.

Legal separation, on the other hand, doesn’t terminate a marriage. It simply allows couples to enter into a contract of sorts. This written agreement addresses aspects of the couple’s married life, such as finances, children, property, etc. Couples are still legally married even when they have a legal separation.

Benefits of Separation

A legal separation is a great alternative to divorce when a couple doesn’t want to be together, but doesn’t want to file for divorce, either. There are many benefits to proceeding with a legal separation over divorce. Because parties are still legally married, each person retains the rights to:

  • File joint tax returns;
  • Continue getting health insurance through their spouse, which would otherwise end with divorce;
  • Receive a portion of their spouse’s social security benefits (you must be married for a minimum of 10 years to qualify)

A legal separation allows couples to have a “trial run” for divorce. Their separation agreement can outline child custody and support arrangements, as well as how assets may be divided. Oftentimes, couples will use their separation agreement as a reference in their divorce.

The Downside to Separation

Legal separation isn’t right for every couple, and it does have its downsides:

  • It is hard for couples to create a separation agreement if they do not get along
  • The agreement is meaningless unless signed by both spouses
  • Couple who wish to use their agreement as a basis for divorce must wait one year
  • You must get a divorce if you want to marry someone else

Take time to consider the pros and cons of  separation, and decide if it is the best course of action for your family.

Legal Separation Attorneys

The family law firm of Brian D. Perskin & Associates P.C. specializes legal separations. The team of experienced attorneys have helped hundreds of New Yorkers negotiate fair separation agreements.

For information on divorce and legal separation in New York, contact Brian and his team at 718-875-7584 today!

Legal Separation law firm
Call Brian D. Perskin & Associates P.C. for your legal separation case!

Military Divorce in New York

Military Divorce

Being a member of the military is tough. It can take you away from your family, and makes communicating with your loved ones difficult. As honorable as it is to serve in the military, it can put a strain on your marriage. Military divorce has some unique obstacles, but the right law firm can make the process less stressful.

Military Divorce Challenges

All divorce cases have their own challenges and hurdles, but these are intensified for military families. Questions surrounding filing, jurisdiction, and child custody are common during military cases.

The grounds for a military divorce are the same as is in a civilian action. A divorce can be filed in New York State when:

  • Either spouse reside in New York
  • The military member is stationed at a base in New York

Active duty military members need to consult with a NYC divorce attorney if they wish to file for a divorce.

Protection for Military Members

Unfortunately, some military spouses will attempt to get a default divorce by filing while their partner is deployed overseas. Luckily, there are laws in place to help protect active duty military members.

For instance, servicemen or women have up to 60 days after they return from active duty to respond to a divorce Summons. Certain deployments make it very difficult for military members to be served with a Summons, which helps to delay the start of an action.

Retirement and Pensions

As with a normal divorce case, retirement benefits and pensions earned during the marriage are considered marital property. This means that they are subject to equitable distribution. However, the Uniformed Services Former Spouses’ Protection Act helps to protect a service person’s retirement benefits. As per the act, the non-military spouse will only be awarded benefits when:

  • The couple has been married for at least 10 years
  • The military spouse was active duty for at least 10 years

Custody and Support Issues

Active duty service members are often deployed, and typically do not receive residential custody. However, they can still retain joint legal custody, and they will have visitation rights. Military members need to take extra care to make sure their parenting agreement has flexible visitation stipulations. It is common for these agreements to include:

  • Phone calls
  • Facetime of video chatting
  • Extended visitation time (i.e.: school breaks)
  • A more flexible visitation calendar

Child support is determined using the same formula and methods in military divorce cases, as in regular divorce actions. A military member’s child support obligation cannot exceed 60% of their pay.

Military Divorce Attorneys

Military divorce is complicated. It requires the help of an experienced divorce attorney who is familiar with the process and additional challenges. The law firm of Brian D. Perskin & Associates P.C. specializes in complex cases, and has represented many service members during their divorce actions.

For more information, or to schedule a free, no obligation consultation, contact our team at 718-875-7584 today!

Common Divorce Myths in New York

divorce myths

The internet is a wonderful tool, but it can be harmful to your divorce or child custody case. There are countless divorce horror stories online, and it’s hard to not believe them. Luckily, the team at Brian D. Perskin & Associates P.C. have shed a light on the most common New York divorce myths out there.

Myth #1: You must file for divorce in the city/state you got

married.

This is not true. Where you file for divorce depends on where you, or your spouse, legally reside. So, just because you got married in Las Vegas, doesn’t mean you must file for divorce in Nevada. Check out New York’s residency requirements for more information.

Myth #2: You cannot get a divorce if your spouse doesn’t

consent to one.

This is one of the biggest divorce myths. New York has two types divorce: contested, and uncontested. Contested divorces occur when one party does not consent to the divorce, or they don’t agree with the terms listed in the Complaint.

A Judge will never force you to stay married if your spouse doesn’t want a divorce. Contested divorce cases take more time than their uncontested counterparts, but a divorce will be granted. Just remain patient and let your attorney handle the matter for you.

Myth #3: Mothers will always be granted child custody

because of court bias.

In New York, child custody is determined in the best interest of the child. This can mean either the mother or the father.

A Judge will issue a child custody order ff you and your ex are unable to reach an agreement on your own. The Judge will take many factors into consideration, including which parent was the primary caregiver prior to divorce, while making their final decision.

Myth #4: You will “lose” your divorce case if you commit

adultery.

New York is a “no-fault” divorce state, so Judges typically pay little attention to accusations of adultery. You are not entitled to a greater share of marital assets just because your spouse had an affair.

With that being said, alimony payments may be impacted if a Judge decides that a cheating spouse wastefully dissipated marital assets by spending a lot of money on his or her fling. It is recommended you hire an attorney to help you determine if this is true in your case.

Myth #5: All marital assets will be split 50/50.

New York divides marital assets equitably, not equally. This means that marital property cannot be split in equal halves between you and your ex.

Instead, the Court must take many factors into consideration while determining the equitable distribution of assets. Factors can include the length of your union, your income, and each spouse’s financial contribution to the marriage. The Court must also determine if an asset is sole property, joint property, or has been co-mingled during the marriage.

Myth 6: You don’t need a divorce lawyer.

One of the most concerning and harmful divorce myths is that you don’t need a lawyer. Divorce cases are complex matters. It is easy to get caught up in your emotions, and for your judgement to become clouded. This is why it is always recommended that you retain an experienced divorce attorney to advocate on your behalf.

The team of attorneys at Brian D. Perskin & Associates P.C. are experts in matrimonial and family law, having represented countless New Yorkers throughout some of the most difficult periods in their lives.

Find out how we can help you. Call us at 718-875-7582 to schedule a free, no obligation consultation today!

Grounds for Divorce in New York

When filing for divorce in New York, the Plaintiff must state a reason for the divorce. This is known as the “grounds for divorce”. There are two categories for divorce grounds: no-fault, and fault.

NO-FAULT DIVORCE IN NEW YORK

In 2010, NY became a no-fault state. This means that neither party will be at fault, or to blame, for a divorce. To obtain a no-fault divorce, the plaintiff will list the grounds for divorce as Irretrievable Breakdown. This is just a fancy term for saying that a marriage has been broken and beyond repair, for at least a period of six months. Uncontested divorces are usually no-fault.

FAULT GROUNDS FOR DIVORCE

Even though citing anything besides irretrievable breakdown was a reason for divorce isn’t required, some plaintiff’s choose to list a specific reason in their Summons. These grounds include:

  • Cruel and Inhumane Treatment;
  • Abandonment (Physical, Constructive, or Lockout Abandonment);
  • Imprisonment;
  • Adultery;

If a plaintiff chooses one of the fault grounds as their reason for divorce, they bear the burden of proving the reason to be true. It is important that a plaintiff retain experienced counsel prior to filing for divorce, especially if they plan to choose one of the above grounds for divorce. (For an in-depth look at fault grounds, click here.)

DIVORCE AFTER LEGAL SEPARATION

Some couples choose to separate prior to filing for divorce. A legal separation allows married couples to obtain their married status, while stipulating child custody, support, and the distribution of assets. Assuming each party has abided by the terms listed in the Separation Agreement for at least one year, then they can file for divorce without having to list one of NY’s grounds for divorce.

Brian D. Perskin & Associates P.C. is a full service divorce and family law firm, servicing the boroughs of New York City, and Long Island. Brian and his team have represented thousands of New Yorkers, throughout every step of their divorce or child custody cases. For more information, contact 212-355-0887, or schedule a free consultation online today!

Expedited Divorce in New York

The best things in life are worth waiting for. This includes divorce (especially since it can be a good thing). However, there are times when the process may need to be sped along. Is it possible to have an expedited divorce in New York, and if so, how can you ensure your case is finalized in a timely manner?

Realistic Divorce Timeframe

The exact timeframe for a New York City divorce varies depending on a few variables. Is your case contested or uncontested? Are you and your spouse able to draft, execute, and file documents in a timely fashion? Do you have children, or share marital property? Have each of you retained separate legal counsel?

An uncontested divorce with no children or property can take anywhere from four to six months to be finalized, and that’s after all documents have been signed and filed correctly. For pro-se litigants, or those who have not hired a lawyer, the process may take more time. It is common for those who are unfamiliar with the court system (or the divorce process, in general) to make mistakes on their paperwork, and file document incorrectly. When in doubt, always turn to the experts!

Contested divorce cases are entirely different beasts compared to uncontested matters. In contested actions, parties will have disagreements concerning child custody, spousal support, equitable distribution, or the grounds for divorce. These kinds of cases involve extensive discovery periods, months of negotiations, depositions, and motion practice, all before a trial can even begin. Because of their complexity, contested divorces take a great deal of time. It is not uncommon for a highly contentious case to last a few years.

Expediting Your Divorce

Tens of thousands of divorce cases are filed in New York City and Long Island each year. The court system is overloaded and backlogged, which is why even uncontested cases take around six months to be finalized.

Expediting a matrimonial action in New York isn’t easy, nor is it common, but it is possible. In order to be granted such a privilege, the parties must have a valid and acceptable reason as to why their divorce should take preference over others. There are many reasons why a divorce can be expedited, but some of the most common include:

  • Pregnancy: A woman is due to give birth before her divorce is finalized, but her legal husband is not the father of the child
  • Marriage: Either party is planning on getting married, but their papers have been delayed or denied, and their divorce will not be final prior to the wedding date
  • Immigration: A married person applied for a visa prior to initiating their divorce, and must present a Judgment of Divorce in order to be allowed to stay in the country
  • Purchasing Property: A person is separated from their spouse, but not divorced, and wants to buy property as a single (not married) individual
  • Military: A person enlists in the military and is facing deployment, and they must divorce their current spouse in order to get remarried so their significant other can receive their military benefits

Keep in mind that the examples stated above are very fact specific, and will vary on a case by case basis. Drafting, filing, and litigating motions for matrimonial cases is not an easy task. It requires an expertise and know-how that only a seasoned divorce lawyer will have. If you are serious about petitioning the court for an expedited divorce, you must hire an attorney to represent you.

Be Cautious of Scams

As the age old saying goes, if it sounds too good to be true, then it probably is. There are hundreds, if not thousands, of companies that prey on the vulnerable by promising a fast, 30-day divorce. These services are riddled with fees, and often employ underqualified staff to fill out paperwork on behalf of their clientele.

As discussed earlier, there is a very specific process for expediting a divorce case. Companies and centers promising a quick divorce often cannot fulfil their end of the agreement. They must abide by the same laws, rules, and regulations of the court as attorneys. If one of these centers promises you any different, you should take your business elsewhere.

The Perskin Guarantee

Petitioning the court for an expedited divorce requires the attention of an experienced matrimonial and family law firm. While not every motion will be granted, you can rest assured that the staff at Brian D. Perskin & Associates P.C. will give your case the attention and professionalism that it so rightly deserves. A proven track record of successfully representing clients during expedited divorce actions in New York City has provided the qualified attorneys with the experience necessary to handle your delicate matter.

For more information, or to schedule a free consultation, contact Brian and his team today!

The Divorce Process in New York

“What is the divorce process in New York like?” and “What is the timeline for a divorce?” are two of the most common questions asked by potential clients. These two questions seem simple enough, but there are far too many factors that must be taken into consideration before a more accurate answer can be given. This is why the staff at Brian D. Perskin & Associates P.C. always encourage New Yorkers to schedule a free divorce consultation.

That being said, we wanted to provide an outline for the process, so those facing divorce can have a better idea of what to expect.

What Kind of Case do You Have?

Contested and uncontested divorces are vastly different beasts. Uncontested divorce cases are fairly simple and straight forward, and can be completed in a relatively short period of time. Contested matters, on the other hand, are much more complicated. These cases often involve disputes regarding child custody or visitation, the division of marital or business assets, and claims to 401(k) and other retirement plans. Generally, contested matrimonial cases require extensive motion practice, litigation, and settlement negotiations.

Given their more complicated nature, contested divorce actions require more time to complete, so the process will be much longer and complex. Knowing what kind of divorce you have will help us to determine the appropriate course of action in order to get your divorced as quickly as possible.

Filing a Summons for Divorce

In order to initiate a divorce action, you must file a Summons with Notice, or Summons and Complaint, in the Supreme Court’s County Clerk’s Office. A Summons with Notice simply informs your spouse that you have filed for, and are seeking, a divorce. A Summons and Complaint lets your spouse know that you have started an action, and also lists the grounds for divorce, and any relief you may be seeking. Examples of relief commonly sought after in a Summons and Complaint can include, but are not limited to, custody, exclusive use of a marital residence, or the desire to remain on their health insurance plan.

There is a fee of $210.00 to file for divorce in New York. When you file your Summons in the Clerk’s office, you will be given an Index Number. The Index Number will appear on all future documents, and acts as an I.D. number in the court’s system. If you cannot afford to pay the $210.00 fee, you can request that the fee be waived. A representative at the Clerk’s office can provide you with more information and an application.

Serving Your Spouse

New York State has very specific rules for serving documents upon an opposing party in a court case. In a matrimonial action, the defendant (your spouse), must be personally served with the Summons within 120 days of the Index Number being purchased. An Affidavit of Defendant is served along with the Summons with Notice or Complaint. You are not allowed to serve documents on your spouse. Only a non-party to the action, who is over 18 years of age, is allowed to serve a Summons.

Most law firms, including Brian D. Perskin & Associates P.C., work closely with process serving companies and organizations to complete service requests in a timely and accurate manner. We will include a letter of instruction addressed to your spouse, explaining the documents and what steps are required.

Once personal service of a Summons is completed, an Affidavit of Service is executed and filed with the court. If the defendant is a resident of New York, they will have 20 days to respond to the Summons, or 30 days to respond if they reside outside of New York. Your spouse can either retain an attorney who will file a Notice of Appearance and draft a Verified Answer, or file a Verified Answer independently. If your divorce is uncontested, your spouse may sign the Affidavit of Defendant and return it to our firm within 40 days of being served.

Affidavit of Defendant vs. Verified Answer

Which step your spouse takes after being served will determine what kind of divorce you now have. If your spouse signs the Affidavit of Defendant within the 40 day deadline, then your divorce will remain uncontested. When this happens, our experienced staff will complete the rest of your required forms, which can include:

  • Affidavit of Plaintiff and Defendant
  • Note of Issue
  • Child Support Worksheet
  • Child Custody Agreement
  • Judgment of Divorce with Findings of Fact; and
  • Certificate of Dissolution of Marriage

If your spouse disagrees with any stipulation listed in your Complaint, then he or she will draft and file a Verified Answer and Counterclaim. In this document, they will detail which items in your Complaint they agree with and deny. Your spouse has the right to request any relief they may want or deem appropriate, but that doesn’t necessarily mean a judge will issue a Judgment in their favor.

Reasons why defendants disagree with a Summons and Complaint vary on a case by case basis, but typically include:

  • Refusal to give up primary custody of children
  • Unwillingness to relinquish rights to marital home
  • Disputes over spousal support payments; and
  • Disputes regarding equitable distribution

Preliminary Conference and Discovery

One of the first court appearances during a divorce action is the Preliminary Conference (PC). During the PC, the court will set a timeline for the case, address any issues that can be settled early, and issue preliminary or temporary orders. During the PC, a judge will also set a deadline for when the discovery process must be completed.

The discovery phase of a contested divorce begins after a Verified Answer is filed and served. The discovery process can be extensive and exhausting, but it is essential in determining the equitable distribution of marital assets. During this period, each party will serve their opponent with Discovery Demands. These demands require each party to produce relevant financial documents, tax returns, health and life insurance information or records, and a Statement of Net Worth. All requested documents must be produced in a timely manner.

It is important to make sure you hire an attorney who has an extensive background in analyzing discovery production, as it is common for estranged spouses to try to hide assets. Hidden assets can result in an unfair settlement, and a lower amount paid (or received) in maintenance or child support. At Brian D. Perskin & Associates P.C., we work tirelessly to review your spouse’s discovery production and look for any discrepancies. We strive to get you the fair and equitable settlement you deserve.

Motions and Trial

The filing and drafting of motions, as well as trial preparation and appearances, are the most time consuming aspects of the divorce process in New York. Types of motions and preparations for trial are case specific, and will vary on a case by case basis.

A motion is a request made to the court to rule on a certain issue, such as child custody, temporary spousal support, compliance with discovery demands, and requests for counsel fees. These kinds of motions are known as pre-trial motions. All motions will include supporting documents, known as exhibits. Your spouse has the right to disagree with any motion that you file, and they can do so by filing an Affidavit and Affirmation in Opposition.

All of your attorney’s previous work during the initial filing, the discovery process, and all motion practice leads up to the divorce trial. During trial, both parties and their respective lawyers will appear in front of a judge in a court room. Trials are open to the public. The plaintiff will present his or her case first by calling and questioning witnesses, forensic experts, and submitting evidence to the court. The plaintiff’s attorney will often question the defendant, and vice versa. After the plaintiff has presented their case to the court, the defendant will proceed.

There is no set time frame for a divorce trial. We have had trials conclude in a day or two, and some that have lasted multiple weeks. Motion practice and litigation are two aspects of divorce that require the keen eye of an experienced matrimonial or family law attorney. You are setting yourself up for disaster if you attempt to proceed to trial without proper representation.

Final Papers and Judgment of Divorce

After the contested divorce trial has concluded, the judge will issue a decision, either verbally on the record, or written. The decision will address all of the issues raised during trial and throughout the divorce proceeding.

We should not that you will not be divorced until final paperwork is submitted to the court and the Judgment of Divorce is signed by the judge. New York City courts are extremely backlogged, and it can take anywhere from 4 to 6 months for your Judgment to be signed and entered after the date of filing. We will take care of preparing and filing your final paperwork, and we will routinely follow up with the court to check the status of your Judgment. Once your Judgment is entered in the Clerk’s office, a representative from our firm will purchase a certified copy from the County Clerk, and forward it to you by mail.

Divorce Challenges

The divorce process is full of challenges, and no two cases will play out the same. This is why it is critical to the success of your case to hire a qualified attorney to advocate for your best interests throughout the process. The family law firm of Brian D. Perskin & Associates P.C. specializes in divorce and child custody actions, with an emphasis on complex and contested matters. Brian and his team have over 50 years of combined experience negotiating, litigating, and settling cases throughout New York City. For more information, or to schedule a free consultation, contact us today!

Grounds for Divorce in New York

In 2010, New York became a “no-fault” divorce state. Prior to the change in matrimonial law, one spouse (or party to the action), would need to take fault (or blame) for the divorce. This meant that they would need to admit that the divorce was happening because of their doing, even if both parties wished to terminate their marriage (this is known as an uncontested divorce).

While it is no longer required that a party to an action cite a specific reason for their divorce, choosing to list a particular grounds is still common. Below, we list and detail what each grounds for divorce in New York means.

Irretrievable Breakdown

Filing for, and obtaining, a divorce is much easier now that New York is a no-fault state. In order to be granted no fault divorce, the plaintiff must list irretrievable breakdown as the reason for their filing. The breakdown of the marriage must have occurred for a minimum of six months before a divorce action is commenced. Irretrievable breakdown is quite vague, as there is no legal definition for what constitutes a marriage that is broken down beyond repair. Because of this, it is open for interpretation and a very common reason why couples file for divorce.

Cruel and Inhumane Treatment

Cruel and inhumane treatment refers to the way a defendant treats the plaintiff. In order to list this as grounds for divorce, the treatment between parties must be severe enough that the physical or mental well-being of the plaintiff is seriously compromised. It would have to be unsafe for the plaintiff to remain living with, or stay married to, the defendant.

One or two arguments and disagreements between spouses does not justify a filing under cruel or inhumane treatment. Any incidents must have consistently occurred within the last five years, and usually involve some form of physical abuse or violence. A plaintiff bears the burden of proving there has been cruel or inhumane treatment, which can be evident in medical records or police reports.

It is important to note the impact a child has while viewing such negative or violent behavior between his or her parents. Growing up in a toxic environment such as this can result in repeat behavior, continued cruelty, and can haunt children well into adulthood. It is in a child’s best interest if their parents get divorced.

Abandonment and Imprisonment

Abandonment and Imprisonment are two different grounds for divorce, and do not necessarily coincide with each other. A plaintiff can only file divorce while citing imprisonment if their spouse has been in jail for at least three consecutive years after the date of marriage. A plaintiff must have the defendant personally served with a Summons while they are in jail. While this isn’t too difficult, it is best to retain a divorce lawyer to complete this process correctly and efficiently.

In order for a plaintiff to list abandonment as a reason for divorce, the defendant must have abandoned their spouse for a minimum period of 12 months. New York recognizes three different forms of abandonment:

  • Physical Abandonment: The defendant has moved out of the marital residence and has not had contact with his or her spouse or children;
  • Constructive Abandonment: Spouses still live together, but one has refused to engage in sexual relations with the other for at least one year; and
  • Lock out Abandonment: One party denies their spouse access to the marital home, and may even change the locks to prevent their spouse from entering.

Adultery or Infidelity

Adultery and infidelity are both valid grounds for divorce, however, they aren’t the most effective because they are difficult to prove. Legally defined, adultery is an act of deviant behavior or sexual intercourse between the defendant and someone other than their married spouse.

Most divorce practitioners will advise their clients against claiming adultery as the grounds for divorce, since the plaintiff’s testimony is not enough to convince the court of a devious act. Additional evidentiary requirements must be met, such as communication between the defendant and other person, photos, or receipts for gifts. The defendant’s admission to infidelity is helpful, but it will not fulfill the court’s requirements.

Contrary to popular belief, claiming or proving infidelity will not negatively impact the guilty party during divorce. While a judge may feel sympathy for the plaintiff, New York law forbids judges from awarding custody or a larger amount of money in alimony to the effected spouse. There is no financial benefit to filing for divorce under the grounds of adultery or infidelity.

Legal Separation Agreements and Judgments

New York State allows married couples to file for a legal separation instead of proceeding with divorce. There are benefits to obtaining a Judgment of Separation. Becoming legally separated allows couples to maintain their married status and the benefits that go along with it, while stipulating child custody and support, maintenance, and equitable distribution.

Assuming both parties have abided by the terms outlined in their Agreement or Judgment for at least one year, then they are eligible to file for divorce without referencing one of the other grounds. This is called a Conversion Divorce. As with abandonment, parties need to reside in separate households during the one year time period. A legal separation does not need to be a precursor for divorce, so parties do not need to worry that they will automatically become divorced once one year passes since their separation becomes finalized.

NYC Divorce Specialists

Divorce can be a very technical and demanding process, which may prove to be overwhelming to someone who isn’t familiar with the court system. This is why hiring an experienced divorce attorney is important. The office of Brian D. Perskin & Associates P.C. is a boutique matrimonial and family law firm based in New York City. Brian and his team of dedicated attorneys successfully negotiate and litigate on behalf of their clients throughout the five boroughs and Long Island. Don’t go through divorce alone; contact Brian D. Perskin & Associates P.C. to schedule your free consultation today!

Annulments, Divorce, and Legal Separation

New Yorkers looking to part ways with their spouse have three options: an annulment, divorce, or legal separation. Before filing a court action, you need to determine which path is right for you. To make it easier, we have outlined the three below.

Annulments in New York

An annulment is different than a divorce, because an annulment makes the marriage null or void. This means that the marriage never happened. Contrary to popular belief, a couple cannot receive an annulment based on the short duration of their marriage. Instead, they must meet one of the following criteria before bringing forth an action for an annulment:

  • One, or both, spouses were under the age of 18 at the time of marriage;
  • Either spouse was unable to consent to the marriage due to a mental incapacity or impairment;
  • Either spouse has been deemed to be incurably mentally ill for a minimum of 5 years;
  • Either spouse is unable to have sexual intercourse or relations with their spouse; or
  • The marriage was entered into by either spouse under duress, fraud, or coercion.

The party who files for an annulment, known as the Plaintiff, bears the burden of proving one of the qualifying grounds to be true and valid. This is often more complicated and time consuming than uncontested divorce actions. Amicable couples are encouraged to file for an uncontested divorce rather than an annulment if they are looking for a faster and less costly way to end their marriage.

It is important to note that New York is a “no-fault” state, meaning a specific reason for divorce doesn’t necessarily have to be listed in a filing. Couples interested in a “no-fault” divorce instead of an annulment need to be married for a minimum of 6 months before bringing an action, so they can swear to the court that their relationship has been in a state of “irreconcilable breakdown” for the legally allowed period of 6 months.

Legal Separation

Legal Separation is a great alternative to divorce when a couple doesn’t want to be together, but also do not want to terminate their marriage. These couples will negotiate a Separation Agreement, which is a detailed contract that outlines the responsibilities each party has in regards to child or spousal support, custody, the division of property, and other financial obligations. If parties ultimately decide to proceed with divorce, their Separation Agreement will be used as a point of reference for a Stipulation of Settlement.

Since parties are still considered to be married during a legal separation, they maintain all of the benefits they shared with their spouse. The major benefits to legal separation are:

  • The continuation of health insurance coverage that would otherwise terminate with divorce;
  • Being able to file joint tax returns;
  • Maintaining a married status allows spouses to qualify for Social Services or retirement benefits; and
  • Using legal separation as a “trial run” for divorce to see if it is the right course of action.

A legal separation is handled in the same manner as divorce, with the Plaintiff filing a Summons and having their spouse, the Defendant, personally served with documents. Personal service informs the Defendant that an action has commenced. Each party should retain their own matrimonial or family law attorney to counsel them throughout the process. It is common for the same lawyer who handled a legal separation to represent their client during divorce (if it should come to that).

Divorce

Divorce is the most common way for New York couples to end their marriage. Like an annulment, a divorce will dissolve a marriage, however, you will be considered to be “divorced” for legal purposes, as opposed to “single” (like with an annulment).

As stated previously, New York is a “no-fault” divorce state, meaning couples don’t need to have a specific reason that they want to terminate their marriage. A plaintiff can simply claim their relationship has been in a state of irreconcilable breakdown while filing a Summons. That being said, New York does recognize 6 other grounds for divorce:

  • Cruel and inhumane treatment;
  • Abandonment for a continuous period of one year or more;
  • Adultery;
  • Imprisonment for more than three years after the date of marriage;
  • Conversion of a separation judgment; and
  • Conversion of a written and acknowledged separation agreement after living apart for more than one year.

Whichever party is claiming one of the above grounds, usually the Plaintiff, must present sufficient evidence to the court in support of their claim. It is not unusual for a Defendant to disagree with one of the 6 other grounds for divorce, and when this happens, the case can become contested.

Before a judge can issue a Judgment of Divorce, parties must reach an agreement addressing child support and custody/visitation, equitable distribution, and maintenance. If parties and their attorneys can not reach an agreement, the court will intervene, and a trial will be held. Many hours of preparation, motion practice, discovery production and review, and negotiations will be spent prior to the trial date. While it is possible to pursue an uncontested divorce without proper legal counsel, the same can not be said for a contested action. Doing so will be incredibly damaging to your case, and you may be unable to rectify any wrongdoings once a Judgment is issued.

Free Consultations

For more information regarding the different ways to dissolve a marriage, contact the New York City family law firm of Brian D. Perskin & Associates P.C. to schedule a free consultation. Discussing your options with an experienced and knowledgeable divorce attorney is the first step to figuring out which course of action is right for you and your family. Deciding to proceed with a divorce or legal separation isn’t always easy, but being well informed can make the process a little less stressful and nerve-wracking. Call 718-857-7584, or visit us online, today!

What Kind of Divorce is Right for You?

You’ve weighed your options, waited till after the holiday season has passed, and are finally ready to file for divorce. Now, you probably have a general idea of the type of divorce you will have: contested or uncontested. Depending on whether or not you and your spouse agree to the divorce, you may need to consider if mediation, litigation, or a collaborative divorce is best for your case.

Uncontested Divorce

Uncontested divorces are the simplest and most straight forward kind of matrimonial cases. In an uncontested action, spouses are able to reach an agreement concerning child custody, support, and the division of assets. Uncontested divorces are usually filed, processed, and finalized faster than their contested counterparts because there is less work involved. They are also more cost effective and result in much smaller legal fees.

Even if you believe your divorce will be uncontested, it is still highly recommended that you meet with an attorney prior to beginning an action. Disagreements can arise, especially if spouses have children, or any marital assets or debt. A qualified family law attorney will be able to effectively manage your case, and prepare for any roadblocks that may arise.

Contested Divorce

A divorce case becomes contested if both parties cannot reach an agreement on either of the following:

  • Grounds for divorce;
  • Child Custody and Visitation;
  • Spousal or Child Support;
  • Equitable distribution; or
  • Pendente Lite Support.

While preexisting New York State law will ultimately determine any orders concerning the division of assets or support obligations if a settlement cannot be reached, having a divorce lawyer on your side is incredibly beneficial. Contested divorce actions require an in-depth knowledge and understanding of the law and legal system, which only an experienced family law attorney will possess. Extensive motion practice, negotiation, and court appearances are all aspects of contested cases. A divorce attorney will be well-prepared to represent their client’s wishes and best interests throughout the duration of a complicated action.

Mediation and Collaborative Divorce

A great alternative to court intervention in divorce involves mediation and collaboration between parties and their respective legal counsel. Through mediation, divorcing spouses voluntarily work together to settle divorce related issues, developing agreements regarding custody, support, and equitable distribution. Because of its collaborative nature, mediation is considered to be “non-adversarial”, which means each party has an equal voice during the divorce negotiations.

Mediation is more cost effective than litigation, less stressful than appearing in front of a Judge, and completely private. Divorce documents and filings are public record, meaning that anyone can easily access documents at their local court house. Details discussed in mediation, such as financial disclosures or personal matters, are not accessible by the general public because the court house would not have these records.

A successful divorce is a child centered one. The child’s best interest must come first. Mediation, or settlement outside of the court room, allows for this to happen. Avoiding prolonged litigation will help to alleviate any stress, insecurities, and uncertainties a child may feel during their parent’s divorce.

Litigation in Court

Unfortunately, not every divorce action is uncontested and is not able to be mediated. Contested cases typically end up in court, with the outcome coming down to whatever a judge decides is best. Litigated cases require court appearances prior to the actual trial, with a great deal of time spent during the discovery and pre-trial phases of divorce. Financial records must be subpoenaed, Statement of Net Worth’s need to be prepared, and lists of witnesses and cross-examination questions must be drafted and filed with the court.

As with any kind of legal action, litigated divorce cases have both pros and cons. Every document entered into the court’s system becomes public record, so they are easily accessible to non-parties. Litigation can become expensive in a short period of time, due to court and attorney fees. New York City area courts are backlogged, so it can take a long time to actually make it to trial.

However, litigation does have its advantages for feuding couples. Spouses who are unable to reach an agreement on child custody and support, alimony, or the division of assets benefit from having a judge make a final ruling on these issues. This especially rings true when once spouse is intimidated by their ex, or was the victim in an abusive marriage. Overcoming the emotional and mental turmoil that stems from an abusive relationship is challenging, but victims can rest assured knowing that their fear will not cloud their judgment during litigation (as compared to mediation or settlement).

Prepare for Anything

Thoroughly preparing for any situation in divorce is always the best course of action, regardless of whether or not your case is contested or uncontested. The staff at Brian D. Perskin & Associates P.C. has handled countless actions where a simple uncontested divorce went south and became a highly contested matter. The firm focuses their practice on matrimonial and family law, with close attention being given to contentious litigated cases. You can trust us for intelligent and aggressive representation!