Brian D. Perskin & Associates

Common Divorce Myths in New York

Common 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!

Infidelity and Divorce in NYC

Infidelity is often cited as the reason why a marriage ends in divorce, as the trust between spouses is no longer present. While numbers vary depending on the source, it is estimated that upwards of 25% of men cheat on their spouses, while at least 15% of women have extramarital affairs.

Why Do We Cheat?

While it is hard to pinpoint exactly why a person cheats on their spouse, but some of the most common reasons can include:

  • Lack of emotional or sexual/physical satisfaction or attraction with a spouse;
  • Curiosity about having new experiences;
  • Falling out of love/decrease in chemistry between spouses;
  • Revenge or anger.

These are just a few of the many and complex reasons why some people commit adultery, and seek to have a relationship outside of their marriage. It is important to note that extramarital affairs do not necessarily have to be physical or sexual, they can also be emotional.

Emotional vs. Physical Affairs

The definition of a physical affair is straight forward: it is when one person has a sexual relationship with someone other than his or her spouse. An emotional fair is a little more complex and harder to define. According to marriage therapist and author Sheri Meyers, an emotional affair is “essentially an affair of the heart” and occurs when someone develops a strong, non-sexual, connection with a person other than their spouse.

Emotional affairs can be just as damaging as a physical one. What started out as a friendship morphs into something more, and takes away attention from the marriage. An emotional affair can start as a new friendship, but will cross the line if romantic feels develop, and the relationship is kept secret from the other spouse. Signs of an emotional affair can include increased communication (email, text messages, and social media) between the two adults, fantasies involving the other person, or a general lack of interest in the marriage.

Does Infidelity Impact Divorce Cases?

The recent Ashley Madison hack has catapulted the issue of extramarital affairs and divorce into the limelight. Angry and feeling betrayed, victims of infidelity will often vow to destroy their spouse during divorce, believing that cheating is frowned on by the courts.

Unfortunately, this is not true. New York is a no-fault divorce state, meaning that a specific reason for divorce does not need to be cited in an initial court filing. There are no laws in New York that penalize adulterers for having an affair, so the effected spouse will not be successful in their attempt to mend their broken heart with a cash or asset heavy divorce settlement.

Scorned spouses can forget about suing the “other woman” or “other man” if their husband or wife is caught cheating. There are only a small handful of States in the country that recognize Alienation of Affection lawsuits, and New York is not one of them. These actions allow the innocent spouse to sue the person their partner had an affair with because they are presumed to be the reason why a marriage is ending, or are guilty of “stealing” affection and love from the innocent spouse. These cases are controversial, and often referred to as revenge lawsuits.

Should I Divorce My Cheating Spouse?

Deciding to proceed with divorce is a very personal and difficult decision to make. If the couple is willing to work on their marriage, via counseling or therapy, and are determined to overcome this relationship setback, then a divorce isn’t necessary. However, there is always the chance that the trust between spouses cannot be rebuilt. Staying in an unhealthy or tension filled marriage is not ideal, and a trial separation or divorce is the best option for all involved.

It is important that parties do not allow their actions to be driven by emotion, since it can often lead to frivolous litigation and increased legal fees. A divorce caused by cheating can be a tumultuous experience, and it is recommended that victims of infidelity turn to their friends and family members for support during (and after) the proceedings. Having a loving support system is crucial to coping with the end of a marriage.

New York Divorce Powerhouse

Focusing on improving their mental and physical health after being cheated on should be a top priority for divorce litigants. This is why hiring an experienced attorney to handle the court action is crucial. The law firm of Brian D. Perskin & Associates P.C. focuses on tough matrimonial and family law cases, providing intelligent and aggressive representation to New Yorkers throughout the five boroughs and Long Island. For more information, or to schedule a free and confidential consultation, call 718-875-7584 today!

New Spousal Maintenance Laws Coming into Effect This Month

After years of effort from lawmakers and advocates, the state of New York has finally passed comprehensive maintenance (or alimony) reform. On September 25, 2015, Governor Cuomo signed Bill A-7645-2015 into law, bringing what many believe is much-needed change to our family law policies regarding temporary and post-divorce maintenance.

Perhaps the most dramatic of these changes is that formulas will now be used to determine temporary and post-divorce maintenance. In the past, these key determinations were largely up to the court's discretion and outdated precedent. The following language is from the bill's sponsor memo and details how the two new formulas will work:

  • With child support where the maintenance payor is also the non‐custodial parent for child support purposes: (i) subtract 25% of the maintenance payee's income from 20% of the maintenance payor's income; (ii) multiply the sum of the maintenance payor's income and the maintenance payee's income by 40% and subtract the maintenance payee's income from the result; (iii) the lower of the two amounts will be the guideline amount of maintenance.
  • Without child support, or with child support but where the maintenance payor is the custodial parent for child support purposes: (i) subtract 20% of the maintenance payee's income from 30% of the maintenance payor's income; (ii) multiply the sum of the maintenance payor's income and the maintenance payee's income by 40% and subtract the maintenance payee's income from the result; (iii) the lower of the two amounts will be the guideline amount of maintenance.

Additionally, numerous other key changes are provided by Bill A-7645-2015:

  • A $175,000 income cap will be set on all temporary and post-divorce maintenance calculations. This is down from the current $543,000 cap.
  • Maintenance calculations will now be made before child support calculations, thus allowing child support decisions to consider burdens from the maintenance determinations.
  • The duration of post-divorce maintenance will now be decided using a new advisory schedule:
    • Zero to 15 years of marriage: maintenance should last between 15 and 30 percent of the marriage's duration.
    • 16 to 20 years of marriage: maintenance should last between 30 and 40 percent of the marriage's duration.
    • 20 years of marriage or more: maintenance should last between 35 and 40 percent of the marriage's duration.
  • Considerations of "enhanced earning capacity" will end. For years, counsel was permitted to work with experts to determine the lifelong value of a professional degree that was earned over the course of a marriage. These calculations will no longer be used in helping to determine spousal maintenance.

These are just the key changes Bill A-7645-2015 will bring to New York divorce proceedings—a complete list is available in the sponsor's memo. All temporary maintenance provisions will go into effect October 25, 2015. The post-divorce maintenance provisions will go into effect January 23, 2016.

For more information on this alimony reform and how it can affect your current or upcoming divorce, please contact us at Brian D. Perskin & Associates P.C. today. Our dedicated New York divorce lawyers are vigilant of legislative changes such as these and always ensure that we provide informed, incisive, and effective counsel to those clients who need their interests protected during this difficult time.

Contact us at 855.544.6175 or use our initial consultation form today.

Grey Divorce: The Next Big Baby Boomer Trend?

Baby boomers have been at the forefront of many social, economic, and cultural movements throughout the past few decades. Always a generation to embrace change, those 50+ are now leading the pack when it comes to divorce trends.

The Stats Don’t Lie

According to a 2013 study conducted by the American Association of Matrimonial Lawyers (AAML), a reported 61% of divorce lawyers have seen an increase in the number of new cases involving baby boomers. The attorneys who participated in the AAML survey estimated that about a quarter of all grey divorce cases were initiated by women, and only about 14% of filings were started by husbands.

Baby boomers are paving the way for complicated divorces later in life. If the growing trend continues on it current path, matrimonial lawyers will continue to see an increase in grey divorce cases well into the next decade or two.

Why are Baby Boomers Getting Divorced?

Just as with any divorce, the reasons for filing will vary on a case by case basis. However, there are a handful of common reasons as to why boomers are divorcing at an exponential rate:

1. Divorce is more easily obtainable. Thanks to New York’s no-fault divorce law, obtaining a final judgement of divorce has never been easier or faster.

2. Empty Nesters. Many older couples come to the realization that they only stayed together because they thought it would be in their children’s best interest. Once the kids have flown the coup, empty nesters realize that they no longer have a reason to remain together.

3. Growing Apart. Self-reflection is often associated with growing older, and upon evaluating their lives, baby boomers may realize they have grown apart from their spouse and are no longer in love. Instead of staying married to their partner, boomers decide to divorce and focus on their personal growth and happiness.

4. Infidelity. Unfortunately, infidelity sometimes plays a role in grey divorce. After being married to the same person for 20 or 30 years, interests in their spouse may wain and an extramarital affair may occur. Adultery is often cited in many divorces, regardless of the age of the parties.

Are Grey Divorces Easier?

The complexity of any legal action will depend on many factors that are specific to each individual case. Grey divorces are no exception, and can either be contested or uncontested. There are pros and cons to proceeding with divorce later in life. Adult children usually cope better with the news of their parent’s impeding divorce, but boomers need to be sensitive of their children’s feelings. While there is less of a chance of child custody and support disputes in grey divorces, older couples have to spend extra time addressing assets, alimony, and retirement funds.

Alimony, Retirement, and Grey Divorce

Alimony, also referred to as spousal support or maintenance, is almost always awarded to one party during a divorce action. The amount of support, and the amount of time a judge orders it to be given, varies depending on the length of the marriage, and how much money each spouse made throughout the course of the union. In long-term marriages that last a few decades, baby boomers may be expected to pay their ex a larger amount of support over a longer period of time. In some instances, support can be paid (or received) for the rest of a person’s life.

Retirement and pension benefits will need to be addressed and divided during a New York divorce. Typically, a Qualified Domestic Relations Order (QDRO) will be completed prior to finalizing any agreements regarding retirement accounts. In most cases, a judge will order each party to list their former spouse as a beneficiary on their individual IRA or 401(k) accounts. Exactly how a retirement account is addressed during divorce depends on the type of account it is. For instance, if a party used income earned during the marriage (which is considered to be marital funds) to contribute to their IRA, then their spouse is entitled to half of the account’s value.

Since the terms and conditions of alimony and pension issues in grey divorce actions are case specific, the only way to get a thorough understanding of what to expect is to speak with an attorney. He or she will be able to advocate on your behalf for a fair agreement.

Equitable Distribution Complications

New Yorkers who divorce later in life have a much longer period of time to accumulate marital property, which can be broken down into tangible and intangible assets. All marital assets are subject to a process called equitable distribution. This means that all major assets, such as homes, cars, financial accounts, jewelry, and art and collectibles, are examined and a value is placed upon them. A common misconception about equitable distribution is that all assets are divided in half evenly, however, this is not the case. Sometimes one party will relinquish their ownership in the marital residence, in exchange for not having to pay their ex as much spousal support.

Baby boomers going through grey divorce will have to endure a prolonged discovery and distribution process since they tend to have an increased number of joint assets. To help expedite the process, it is recommended that litigants have access to property deeds, financial and mortgage statements, and retirement account documents. Using a financial checklist to help keep track of documents is helpful.

NYC’s Grey Divorce Advocates

The attorneys at the family law firm of Brian D. Perskin & Associates P.C. understand the complexity of grey divorces. These unique cases often require a detail oriented and aggressive litigator who is capable of reaching a fair and beneficial settlement for their client. With over 50 years of combined experience, Brian and his team of associate attorneys have a thorough knowledge of New York State law, and apply their expertise to each case. For more information, or to schedule a free and confidential consultation, contact NYC’s leading divorce law firm today!