The Divorce Process in New York
Understanding the Divorce Process
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:
- 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.