Bernard Dworkin

NEW YORK HAS FINALLY BECOME A NO-FAULT STATE! which means that a divorce can be obtained without the need of proving traditional grounds for divorce. The new no-fault ground for divorce is established when one party states under oath that the relationship; between husband and wife has broken down irretrievanbly for a period of at least 6 months. The traditional grounds in New York remain and they are cruelty, abandonment for one year (including sexual abandonment), confinement in prison for three years, and adultery, but there is no need for them. There is one other ground which is a quasi no-fault ground but it does require the consent of both parties and a waiting period. That is, if the parties after signing a separation agreement in the proper form, or obtaining a separation decree from a court, live separately for one year and the plaintiff substantially performs the conditions of the agreement, then a divorce can be obtained on those grounds.

FIRST, the plaintiff must file a summons and then must personally serve the defendant within 120 days of the filing. Once he or she is served, he or she must also be served with a Complaint which sets forth in detail the reasons for the divorce and advises the defendant of what relief is sought.

The defendant then must respond to the allegations of the Complaint in an Answer and the defendant can also counter- claim in that Answer setting forth any relief he or she wants and grounds for divorce, if divorce is desired. If there is a counterclaim, then the plaintiff must serve a Reply. All of these papers have to be served within statutory time periods, usually twenty (20) days. Extensions of time are usually granted freely.

It is practically impossible in New York, when there is a divorce action, for the parties to end up still married because there is no real defense to a no-fault divorce action (except, perhaps, that the parties have not been married for less thsan 6 months.)

Once the papers are exchanged, there is usually a process of disclosure during which each side is required to tell the other what assets, liabilities and income each has.

Depositions can be conducted during which each lawyer is permitted to question the opposite party under oath and a legal stenographer takes down the testimony and later supplies a transcript. Written questions and other discovery devices are permitted.

Once discovery is completed a conference is usually held before the judge who tries to resolve the case. If the case cannot be resolved, a trial date is assigned. In New York City, the court calendars are quite congested and it can take anywhere from a year to three years to obtain a divorce if the issues are contested and they are complicated. If the parties reach an agreement, then the wait is two to three months to process the final papers.

MAINTENANCE

While there is no fixed percentage of the wage-earners' salary that he or she must pay post-divorce to the lesser wage-earner spouse, and each case is determined according to the particular facts and circumstances. The court has a great deal of discretion in fixing support for a spouse, which we call maintenance, but we used to call alimony. Our New York statute requires the court to consider the 20 factors in fixing post-divorce or so-called “permanent” maintenance, including:

As you may note, the court has a great deal of leeway to make its decision. In ordering maintenance, the standard of living which the parties maintained during the marriage is important and the court will try to supply the dependent spouse with sufficient funds to maintain that standard if it is a fair amount of the husband's income. It would be unusual for a court to order the husband to pay more than one-half (1/2) of his available income to a wife and child.

Temporary maintenance, that is maintence ordered by a court during the divroce action, is based on a formula which was poorly considered by the legislature and, as a resut, the court have been struggling with it. Many lawyers feel the formula can result in injustice, even though the statute permits the court to vary from the formula if it thinks the formula would result in an unjust or inappropriate result.

The legislature is now studing proposals which would make post-divorce maintenance formulaic similar to the formula for temporary maintenance. It is expected that the new formular will rely not only on the parties’ income, but the length of the marriage.as well.

Divorce can be very expensive if the matter is contested. Often, an attorney will delay proceedings as a tactic to run up costs, especially if the other side wants the divorce. Attorneys in matrimonial matters are required to charge on an hourly basis and those fees range anywhere from $200 to $600 per hour, depending on the expertise and reputation of the lawyer. A simple, uncontested divorce carefully handled might cost $2,000-$3,000. A contested divorce could cost $50,000 to $100,000. Generally, if the parties do not have much to fight about, that is, not very much property and no custody issues, then it is not likely to be expensive. My experience in New York City is that because of crowded calendars and the high cost of divorce, cases are often settled out of desperation and the outcome is not always fair. As a rule, the stronger and wealthier party has an advantage when the court is not available because of having too many cases.

Child support is based on statutory percentages and the law is now clear that the percentage may be applied to the non-custodial parent's entire income. The statute provides that the custodial parent is generally entitled to 17% of the non-custodial parent's income if there is one child. For two children it is 25%, for three 29%, for four 31%, and no less than 35% if there are five or more children.

Read: Can You Trust Your Divorce Lawyer? 
Law Offices of Bernard Dworkin

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