FREQUENTLY ASKED QUESTIONS ABOUT DIVORCE
1. How long does the divorce process take?
The time the divorce process takes varies case by case, and depends on several factors including the nature of the divorce, the parties to the divorce, the county that the divorce papers are filed in, the judge, the state, etc. Generally, uncontested divorces—in which both spouses agree to the divorce and about what will happen with the children, finances, and property after the divorce—take between 4 and 6 months, although they also vary. Complicated divorce cases can take anywhere between six months and two years. Particularly, if the parties are fighting over custody and finances, the case will take longer. If there is a disagreement regarding custody, the process may take about a year or longer, whereas if the parties are only fighting over finances it may be a shorter time frame.
2. Do I need a lawyer to get a divorce?
It is strongly advised that parties to a divorce meet with a lawyer because divorce law can be complicated and it is important that each spouse’s interests are represented and advocated for, as well as that the divorce follows the proper legal procedure. If the divorce is uncontested, and all financial and custody issues have been resolved, parties to a divorce can use the Uncontested Divorce Forms Packet from the courts, but even in these cases it is highly recommended that a lawyer is consulted.
3. I have an attorney, but I think I want to hire someone else. Can I do this?
Yes you can! If you are unhappy with your current representation, for whatever reason, contact us for a free consultation. Our firm has been representing a diverse clientele for over 20 years, and a portion of our clients have come to us after they had already retained a lawyer elsewhere.
If you decide to make the switch to Brian D. Perskin & Associates P.C., we will file a Consent to Change Attorney and Notice of Appearance with court, and request that your former attorney send us your entire case file.
The process of changing attorneys is quite simple, so do not hesitate to proceed if you aren’t pleased with your current representation!
4. What are the “grounds” for divorce?
In New York, there are four grounds for divorce which are based upon the fault of one party. These are: cruel and inhuman treatment, adultery, abandonment for one or more years, or imprisonment for three or more years. You may also apply for a “no fault” divorce, for which the grounds are: living under a separation agreement or court decree for more than one year. Either way, an attorney will be helpful in helping you determine your separation agreement or divorce agreement.
5. Where do I file for divorce?
In New York, you file for divorce in Supreme Court, not in Family Court. You are required to file for divorce in the county in which you currently live or the county in which your spouse currently lives.
6. Do both spouses have to agree to the divorce in order to get divorced?
Even if your spouse does not agree to the divorce, you can still get divorced. It is, however, required that the defendant (the party who does not initiate the divorce) be personally served with divorce papers according to New York State law. Thus, you must know where your spouse is located so that you can have the divorce papers hand-delivered to him or her. Once they receive the papers, you are able to proceed with the divorce whether or not your spouse consents to it.
7. What if I don’t know where my spouse is located?
You must know where your spouse is living so they can be served with the Summons and Verified Complaint for Divorce. If you cannot locate your spouse on your own, you may have to hire a private investigator. Working with an experienced divorce attorney would be incredibly beneficial in this situation.
Once you locate your spouse (now the defendant), and serve them with the Summons and Complaint, you must wait for them to respond to the papers and retain an attorney (if they choose to do so). If they fail to respond within a given amount of time, you and your lawyer may file for a default judgment. This means that your divorce would be automatically granted since the defendant failed to respond.
For more information on what to do in this situation, contact an attorney from Brian D. Perskin & Associates P.C. to discuss your case.
8. What is the difference between a contested and uncontested divorce?
A divorce is uncontested if both parties to the divorce want to get divorced and agree about what will happen with their children, finances, and property after they dissolve their marriage. A divorce is contested if either one spouse does not want to get divorced, if the parties disagree about the reasons for the divorce, and/or if they disagree over what will happen with their children, finances, or property after the divorce. Contested divorces generally take more time and require more visits to Supreme Court. In contested divorces, there is even more need for each party to retain a lawyer.
9. How is an annulment different than divorce?
Divorce is a process by which both spouses are putting a legal end to their valid marriage. Annulment is a process that legally nullifies the marriage altogether, making it as if it never existed. § 140 of Domestic Relations Law details six different grounds for annulment:
1. The marriage that was entered into is based in fraud;
2. If one partner entered into the marriage because of duress or pressure from their spouse;
3. If the parties who married were under the age of 18;
4. If one of the spouses is unable to understand the nature, consequence or effect of the marriage due to mental incapacity;
5. If after the marriage, one of the parties becomes incurably insane for at least 5 years;
6. Either spouse was incurably unable to have intercourse at the time of marriage.
10. I was served with a Summons and Notice. What do I do?
You have 20 days to respond to a Summons and Notice for Divorce. While not all divorces require an attorney, it will be in your best interest to at least meet with a lawyer who practices in your area. By doing so, you can get a better understanding of the papers you were served with.
If you ultimately decide to retain an attorney, your lawyer will file all necessary documents with the court, communicate with opposing counsel, and advocate on your behalf throughout the divorce.
11. How does a judge decide custody?
With custody and visitation agreements, a judge will evaluate a number of factors. The ultimate goal is to find a custody arrangement that is in the best interests of the child. A judge will likely evaluate each parents’ relationship with their child, who is primarily responsible for the child’s wellbeing, overall parenting ability, where each parent resides, any history of abuse, etc. Determining a child custody arrangement is something that will vary greatly from case to case, as there are unique characteristics involved in each family dynamic.
12. How long does a parent have to pay child support for in New York?
In New York State, parents are legally required to support their children until the age of 21. This includes child support. However, there are a few exceptions to the general rule. You do not need to pay child support if the child is married, self-supporting or in the military.
Child support payments are
13. How long do I have to pay alimony or maintenance for in New York?
The duration of spousal support is ultimately up to the judge, but starting in January 2016, a new advisory schedule will be applied to these decisions. While the court can still consider special cases, this new schedule will serve as a “rule of thumb” for determining the length of spousal support.
The new advisory schedule states:
- Maintenance following a marriage of zero to 15 years should last 15 to 30 percent of the length of the marriage.
- Maintenance following a marriage of 16 to 20 years should last 30 to 40 percent of the length of the marriage.
- Maintenance following a marriage of more than 20 years should last 35 to 50 percent of the length of the marriage.
There is also Pendente Lite, or temporary maintenance, for financially dependent spouses who need to be supported for the duration of the divorce (before post-divorce maintenance rulings are made). These payments end at the conclusion of the divorce.
14. How will equitable distribution affect my property?
In New York, all property acquired and income earned during a marriage is subject to equitable distribution. This is a process for dispersing property acquired by or owned by either spouse upon the termination of a marriage. During equitable distribution, the courts will sort out what is considered separate property and what is marital property.
Separate property (property acquired before marriage) usually remains separate and marital property (property acquired during marriage) is distributed equitably between both spouses. The courts will also take into consideration the circumstances surrounding the case and both parties.
15. What is an Order of Protection?
An Order of Protection is an official court order that prevents one party (the Respondent) from abusing, stalking, harassing or showing violent behavior towards the other party (the Petitioner) involved in the case. The Petitioner has the right to call the police if the Respondent violates the Order, and the Respondent will face possible jail time.
A Petitioner will generally request that a Respondent be served with an Order of Protection during divorce or family law cases. While the court reviews a petition for custody, support or visitation, a Temporary Order of Child Support or Custody may be issued. This temporary order will outline custody and child support requirements until an agreement between the parties can be finalized.
There are various types of Orders of Protection, as well as different terms and stipulations, so it is highly recommended that you retain an experienced attorney to assist you with this matter.
16. Why hire Brian D. Perskin & Associates P.C. for my divorce?
There are many divorce and family law firms in the state of New York. What makes our firm different? Lead Attorney Brian Perskin wrote the book on Winning Divorce Strategies. He has more than 20 years of legal experience and has also authored a number of other publications on various aspects of divorce. This firm has extensive knowledge of New York divorce law as well as the ability to creatively apply to each clients’ case.
17. What do I need to bring to my consultation?
After scheduling your free consultation with Brian D. Perskin & Associates P.C., you will be asked to fill out a short form that will be sent to you via E-mail. This form will ask for the basics of your case as well as general information. You do not need to have your spouse accompany you to the consultation because we are only able to represent one party in the action. If you have already been served with a Summons, you should bring it with you to the consultation.
While it is not necessary, you may want to bring a pen and notepad to write down key points during the meeting.
18. I can’t afford a lawyer.
The court can appoint a lawyer to represent you if you are unable to pay for one yourself. Alternatively, you may contact your local county bar to speak with one of their volunteer attorneys for assistance on your case.
Brooklyn Bar Association: 718-624-0675
Bronx County Bar Association : 718-293-5600
New York County Lawyers Association: 212-267-6646
Queens County Bar Association: 718-291-4500
Richmond County Bar Association: 718-442-4500
Suffolk County Bar Association : 631-234-5899
Nassau County Car Association: 516-747-4070