The Divorce Process in New York

Understanding the Divorce Process

Contested vs. Uncontested Divorce: In New York, there are two basic kinds of divorce, contested and uncontested. In a contested divorce, either one or both of the parties cannot agree about the terms of their divorce, or about getting divorced in the first place. In an uncontested divorce, both parties come to an agreement about the issues involved in their divorce – including child custody, alimony, etc.

Trial Preparation & Discovery: Following a contested divorce filing, the discovery process begins. This will help the parties delineate and value assets and income. Each party may send the other a list of questions, or interrogatories, compiled by their attorneys. The discovery process requires that each of these questions be answered by the spouse under oath or there may be requests for documents and testimony under oath (deposition).

Locating Expert Witnesses: When preparing for trial, your New York divorce lawyer may locate expert witnesses. In the context of divorce, an expert witness is someone who is allowed to express a professional opinion at the trial about the value of assets or reasons for custodial awards.

Divorce Hearings & Trial: Following discovery, attorneys will argue in the interests of their clients before the divorce happens. Each lawyer will present to the person hearing the case with information and evidence supporting their claims.

Divorce Mediation: In some jurisdictions, the law requires that both parties participate in mediation before the trial preparation or discovery process can even begin. The goal of mediation is for both spouses to attempt to resolve their differences under the guidance of a trained mediator. This is generally an excellent idea as it saves money and time about which many couples are not aware.

Divorce Settlement: Once litigation has begun, most spouses will discover that, if they can agree, they can save time, money, and frustration. Most spouses understand, on some level, that they should settle the case instead of fighting it out in court.

Grounds for Divorce

Annulments: Marriage annulments, which state that a marriage never existed, are not as common as they once were. While a divorce signifies that a marriage has ended, a marriage annulment states that, for one reason or another, the union was not an actual legal marriage. These can be complicated.

The Reason for Divorce: In terms of divorce, “grounds” refer to the reasons why you wish to end your marriage. When a party initiates a divorce, they must provide the reason why they want the divorce.

In New York, some of the most common grounds for divorce have included:

• Adultery
• Cruelty
• Abandonment
• Imprisonment
• Irreconcilable differences or agreement for a year or more.

Fault vs. No-Fault Grounds: In 1970, California was the first state to enact a no-fault divorce law. In 2010, New York enacted a similar law. Every state now provides the option of no-fault divorce and 33 states still offer fault grounds. In a no-fault divorce, no one is alleging that the other has done anything wrong in the marriage.

Post-Judgment Divorce Litigation

Post-Judgment Litigation: In some cases, former spouses will meet again in court after their divorce has been finalized. If one spouse is unhappy about the terms of their divorce or circumstances have changed—resulting in the need for a modification—post-judgment litigation may be necessary.

Appealing a Divorce Case: If you, your spouse, or both of you are unhappy with the result of your divorce trial, either or both parties may file an appeal with a higher court. When you file an appeal, you are essentially asking a higher court to determine whether or not the trial judge made an error, such as misinterpreting the law or allowing inadmissible evidence or testimony into the trial.

Modifying the Divorce Decree: Once a divorce has been finalized, the court may entertain motions to modify the divorce decree; however, they will only do so under specific circumstances.

We can help you with these issues. Call Lois M. Brenner at (646) 663-4546.