FAQ's Answered by the Pros
Most married people know or think they know about divorce -but do you really?
A. Terminating a marriage is a legal remedy for a married relationship that is not working and is not ever going to work. Deciding at what point you should consider it is very personal and depends upon many factors including one's children, assets, state of residence and reasons to separate permanently. Most lawyers and counselors recommend attempting to reconcile and find areas of agreement. Even if there is a divorce in the end these agreements will save time and money in the negotiating phase of the divorce contract. Fault is no longer relevant as New York is a "No Fault" state.
Do you need a specific reason to get a divorce?
A. No, New York as a no-fault state whereby you need no specific reason to obtain a divorce.
Divorce comes up in many of our arguments -does that mean we are destined to be divorced?
A. Divorce is not a word to threaten with, it is a legal action and should be done based on long term goals, not on a fight or temporarily hurt feelings. Sometimes, an impasse in a particular argument will open up to a new mutual understanding and better relationship. Try to see one another's point of view.
My spouse has a girlfriend/boyfriend and is unfaithful -does that mean I should file for divorce?
A. The majority of divorces are filed after infidelity, but in reality these side relationships rarely last and some couples are able to forgive and move on with some professional help. Often, relationships outside marriage are just symptoms of issues inside the relationship that need to be addressed. Seek counseling before you rush to file for divorce. The same problems can crop up in new relationships, so don't assume another partner will solve your issues. That is up to you.
. What will be different besides living apart?
A. A marriage is an economic unit recognized by the state and given certain advantages and privileges. Rights of inheritance and household maintenance pertain to spousal law. Recognition during health crisis or death of a spouse gives rights to the spouse for healthcare and end of life care and to the survivor to claim and decide on the disposition of the body.
What are the Economic results of divorce?
A. Because the marriage is recognized as an economic unit by the court, an assessment tool is used to determine what assets each person brought into the marriage and how much the pair have accumulated during their time legally together. The total assets accumulated during the marriage are divided equally in a divorce, and so are their debts. A complete record of your assets and liabilities is required to file for divorce -so keep good records.
What about the house?
A. The home is no longer assumed the property of the wife, and even if there are children living in it, the court may say it has to be sold. Negotiating a fair and equitable settlement takes time and the assistance of an experienced attorney on your behalf. Keeping the home is a priority for some, but an impossibility for others. The parties may decide to hire a real estate appraiser to determine the market value of the home in the current market and tell whether values are going up or down and by how much in recent years. Sometimes keeping the home is cost prohibitive because two households are more expensive than one.
Can we use the same lawyer to get divorced and save the money on two fees?
A. Couples have used the same lawyer but it is discouraged and is even illegal in some states. A legal position is justifiably on one side or the other and representation that is not for you specifically may miss some of your rights or assets in the negotiations. This type of thinking is penny wise and pound foolish, and both should have their own lawyer. Cases that seemed very simple often turn up hidden assets. I personally will never represent both parties, but an amicable divorce can save money. This is called a "friendly" or "default" divorce where only one attorney is needed, and the other party agrees to default without an attorney because they agreed on the terms.
What is alimony and how do courts determine who pays how much?
A. In our state there is no alimony; but there is a payment based on years married termed "maintenance". Traditionally, there was a general rule of the court is that payments for the "at home" spouse during childbearing and rearing phases allots payments for one-third the length of the marriage. So it is important to have a copy of the marriage license or certificate to determine the legal length of the union. For example: payments would be expected for one year for a three year marriage and eight years for a twenty-four year marriage. New York is a no-fault state and one can obtain a divorce whether there is "fault" or not. There is now a maintenance calculator which takes all of the relevant information as data, and calculates a recommended result for the court.
What is maintenance and how do courts determine who pays it?
A. Maintenance is an amount of money paid to the non-earning spouse or low earning spouse for a specific time period to allow them to get a job and career established. Sometimes the maintenance payments will be affected or stopped with the remarriage of the spouse being paid. This provision is negotiable and if you plan to remarry, you should negotiate it or otherwise address this issue. Many women do not remarry while their ex-husbands do because of the financial arrangements.
Can we set up our own agreement about household assets and property?
A. This is the best way to save time and money on a divorce. Go through the house with a clipboard and write down who wants what and at least get the things you agree on out of the way. Do not forget EVERY ITEM you now own is joint property and must be addressed. There is no provision that says she gets all the kitchen equipment and he gets the tools in the garage. That has to be written down. Maybe you each want some tools and kitchen items to start your new household. Will you need a lawnmower? Can you do without a vacuum? Unfortunately, many items are necessary for each new household and some trades will have to occur. Think about who is moving out, if both must move, and where you are going. How much room will there be for bicycles and kayaks? Kids toys and books will have to be divided too. Who gets the swimming pool -or will you sell it with the house? An enormous and costly burden will be lifted if you can agree on these simple household items and agree to allow enough money to replace essential items with new ones equitably.
email questions to scotthumblelaw@gmail.com
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