Divorce FAQs

Q: What is a legal divorce?

A: A divorce is a method of terminating a marriage contract between two individuals. From a legal standpoint, your divorce will give each person the legal right to marry someone else, it will legally divide the couple’s assets and debts, and determine the care and custody of their children. Each state addresses these issues differently, but there are some relatively uniform standards. Each state does have some type of “no fault” divorce laws that can significantly simplify the divorce process.

Q: Will the court consider the fault of one party with regard to the divorce?

A: Marital fault is not usually considered a factor in divorces with regard to economic issues and issues involving custody, child support and spousal maintenance.

No Fault Divorce Law

Since October 12, 2012, New York has had a “no fault” divorce statute. An individual can sue for divorce in the State of New York based on there being an irretrievable breakdown in the marriage for a period of 6 months. The parties alleging the breakdown in the marriage do not have to state why it broke down or what the cause of the breakdown was. Basically if one party wants a divorce he just alleges they haven’t been getting along for six months and the divorce will go through. The allegations with regard to fault are not considered by the court with regard to issues concerning child support, spousal maintenance and division of the marital assets.

Q: What is a no fault divorce?

A: Traditionally, divorce was granted on the basis of some marital misconduct such as adultery or physical abuse. In these cases the “guilty” spouse was punished by getting a smaller share of the couple’s property or being denied custody of their children while the “innocent” spouse was rewarded for being faithful to the vows of marriage. In a no fault divorce, however, both parties agree that there is “no fault” involved in the grounds for divorce. In fact, any misconduct is irrelevant to the divorce proceedings. A marriage can be terminated simply because the couple agrees that it is no longer salvageable.

Please note that state’s laws differ on the issue of fault or no fault divorce. Currently 49 of the 50 states have effective no-fault divorce grounds. New York State is the only state in the United States that does not have a true no-fault ground for divorce.

Q: What is a fault-based divorce?

A: A ”fault” divorce is one in which one party blames the other for the failure of the marriage by citing a legal wrong. Grounds for fault can include adultery, physical or mental cruelty, desertion, alcohol or drug abuse, insanity, impotence or infecting the other spouse with a venereal disease.

Q: What are the requirements for filing a petition for divorce?

A: The requirements for filing a petition for divorce vary for each state. There are residency and domicile requirements. That means one of the parties must have been a resident of the state for a specified period of time prior to the filing of the petition. Some states do not have a residency requirement.

Q: What is a legal separation?

A: A legal separation can involve a court order declaring that a couple is no longer living together, and that all the issues concerning the marriage have been resolved, such as issues related to children and distribution of property. It does not terminate the marriage or legal status of the couple as married. The spouses are not free to remarry.

Q: What is marital property and what is separate property?

A: Marital property, in the context of a divorce proceeding, can be defined as any property owned by either of the parties which was accumulated during the course of the marriage. This is without regard to which of the two parties to the marriage earned the money to obtain this property. During the course of a divorce proceeding, in New York, marital property is divided pursuant to what is referred to as the “Equitable Distribution Law.” Equitable distribution is not equal distribution of marital property although in some cases that tends to be true.

Separate property is property which was owned by one spouse or the other prior to their being married. In addition, gifts received by each of the parties to the marriage and items that were inherited are considered separate property. Personal injury awards and settlements are also considered separate property. If one of the spouses owned a business or had a professional license which was acquired prior to the marriage, this would be considered separate property too.

Separate property can be converted into marital property if it is commingled with marital property. The most common way this is undertaken is to move money that is separate property into a joint bank account. The spending of separate property funds to modify, maintain, or to pay bills for a house which is in both parties names, converts the separate property into marital property.

Issues involving separate property and marital property are complex with many permutations. Should you have questions concerning issues involving separate and/or marital property, feel free to call the divorce lawyers at the Law Offices of Elliot Schlissel to discuss this matter. We can be reached at 516-561-6645, 718-350-2802 or 1-800-344-6431. Our phones are monitored 7 days a week.

Q: May the provisions in a divorce be changed afterwards?

A: They cannot be changed unless there is a provision in the separation agreement to do so, unless one of the parties commits fraud, or to correct mistakes in drafting. However, there is a provision in the law to amend spousal or child support based upon a change of circumstances.

Q: Can child custody and/or child visitation aspects of a divorce judgment be modified?

A: The custody and parenting time (visitation) issues which were resolved in a divorce can be reopened if there has been a substantial change in circumstances. The party seeking to reopen these issues must show not only that there was a substantial change in circumstance but it would be in the best interest of the child or children, for there to be a change or modification in the custody arrangements.

Q: How is property divided in a divorce?

A: Courts divide property between spouses using two different concepts: Community Property and Equitable Distribution. The laws in each state vary as to the factors it uses to determine the final property division.

Keep in mind, equitable does not mean equal. The goal is to award each spouse a percentage of the total value of the assets.

Generally, states that use the Community Property system classify all the property as either community property or separate property. Community property is owned equally by the spouses and divided equally at divorce. Separate property is kept by the spouse who owns it.

The community property states are: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin.

States using the equitable distribution system consider all the assets and earnings accumulated during marriage to be marital property and divide them fairly at divorce.

Q: What is the difference between maintenance and alimony?

A: Some states refer to alimony as maintenance or spousal support. Each word refers to the same concept – one spouse providing funds to the other, but each state has different rules to determine how much support is paid. Alimony (or maintenance or spousal support) can be awarded for an indefinite or definite period of time. Generally, courts consider the standard of living of the parties that was established during marriage, the circumstances of the case and of the parties, whether the party who is getting the award lacks sufficient property and income to provide for his/her reasonable needs and whether the party paying the maintenance has sufficient property and income to provide for the other’s reasonable needs. If you live in a fault-based state, some courts consider the fault of the parties when determining support.

Q: Can a father get custody of his children in a divorce proceeding?

A: Under the laws in the State of New York, both mothers and fathers have equal rights to custody of their children. There is no discrimination based on the sex of the parent. Custody awards are made based on a court taking into consideration what is in the best interest of the children. In custody disputes there is usually an attorney for the children appointed. Sometimes forensic psychologists are hired to make custody recommendations. The court will also take into consideration, in some cases, a child’s preference as to who he or she would like to reside with.

Father is Primary Breadwinner

In situations where the father is the primary breadwinner and spends significant time during each week at his place of employment and the mother had in the past been a full time homemaker, maintaining the household and raising the children, in most cases, the mother would have a greater likelihood of being successful in a custody fight. However, in cases where both parents work and they have equal access to the children, a father has an equal opportunity to obtain custody of his children.

Q: Do I need to hire an attorney?

A: It is not mandatory that you hire an attorney and you may represent yourself. However, you may be putting yourself at a serious disadvantage. Most divorces are not straightforward unless there are no marital assets, children or other joint issues. Given the complexity of the issues, it may be beneficial to employ the services of a professional who is knowledgeable with the law in your state and experienced in the field.

Q: How do I determine who is the best divorce attorney for me to hire?

A: You should hire an attorney with substantial experience in matrimonial and family law cases. You do not want to be the guinea pig for this lawyer. Professional standing with bar associations, information concerning the attorney’s website, articles published by the attorney are all significant factors to be taken into consideration when hiring an attorney.

Feeling Comfortable With The Attorney

However, the most significant factor is whether you are comfortable with this individual representing you concerning this important matter. During the course of a contested divorce, you will have substantial contact with your attorney. He or she should be someone who can deal with the difficult emotional, psychological, and financial issues presented during the course of the divorce. The attorney also has to be someone who is available to you at the times you have questions or emergency situations.

Be careful who you retain as your attorney. In the event you are dissatisfied with the attorney, you should meet with another attorney and retain that attorney to take over your case. There is a procedure established for new attorneys to have files transferred from old attorneys. It is not necessary that you actually call your old attorney and say “you are fired.”

Q: How can a man protect himself from his spouse taking inappropriate action with the family’s assets?

A: In all divorce lawsuits in the State of New York, an automatic stay restraining order goes into effect upon the start of the lawsuit. This freezes the assets and prevents the spouse from cancelling health insurance and life insurance policies. This court order also protects each of the spouses with regard to transferring assets, hiding assets, and taking any other action with regard to the family’s assets which are not in the usual course of the family’s business or related to usual household bills. These assets can be used for lawyers fees related to the divorce lawsuit. It is also extremely important that if you believe a divorce lawsuit is brewing to obtain written documentation as to all of the accounts and assets including, but not limited to, 401(k)s, pensions, and deferred compensation.

At the first interview you have with your attorney you should discuss all of your assets and liabilities and any concerns you have concerning the manipulation of assets and/or creating unreasonable debts by the spouse. In the event there are joint bank accounts, joint credit cards, joint investment accounts, action can be taken to freeze these accounts. Action can also be taken to cancel credit cards and place limits on credit cards. Financial institutions are cooperative with regard to freezing bank accounts and investment accounts when a matrimonial lawsuit is pending.

Q: Now that New York has a no fault divorce law, referred to as irreconcilable differences, is marital fault still an issue in divorces?

A: The answer to this question is, possibly! Although an individual suing for divorce in the State of New York can get divorced based on irreconcilable differences, the previous grounds for divorce which were adultery, cruel and inhuman treatment, living separate and apart pursuant to a written agreement of separation, and abandonment, still exist in the State of New York. If a spouse sues for divorce on one of those grounds, the fault would become a factor in obtaining the divorce. However, no matter what grounds you utilize to obtain the divorce, the fault issue is not relevant to the division of assets referred to as equitable distribution or payments of child support and spousal maintenance.