Divorce lawyer in New York answers frequently asked questions by clients

A New York divorce lawyer answers 10 frequently asked questions

(1) HOW LONG DOES IT TAKE? Anywhere from 6 weeks to 4 months (if uncontested) If it is contested, the jury is out. It could take more than a year. It would depend on the judge, the assets of the parties, whether there is a trial to determine fault and distribution, etc.

(2) CAN I KEEP THE HOUSE? It depends. The court decides based on certain factors such as who holds title, who paid and how much, who has custody of the children, length of the marriage, main breadwinner, and in some cases, fault, etc. Usually, though, it will probably be sold, or one spouse will have to buy out another spouse.

(3) WHAT TYPES OF PROPERTY GETS DISTRIBUTED? Everything earned or acquired during the marriage, including pensions, IRA’s, cash, stocks, bonds, real estate, businesses, and degrees.

(4) DO I HAVE TO CHANGE MY NAME BACK TO MY PRE MARRIED NAME? Only if you want to.

(5) HOW DOES THE COURT DETERMINE WHO GETS CUSTODY? Good question. The court looks to “what is in the best interest of the children.” If that means that one parent is more stable (financially, emotionally) that parent may get custody. Just because a parent makes more money doesn’t mean they are more fit or that it is “in the best interest of the children,” to grant that parent custody. The court looks at the specific facts of the case. For example, if one parent is an known drug user, he or she probably won’t get custody if challenged.

(6) WHAT IF ONE SPOUSE SELLS ASSETS BEFORE THE DIVORCE IS FINALIZED? Usually the spouse will be charged at the time of the divorce settlement. So if the asset was worth $25K and one spouse “surreptitiously” sold it knowing a divorce was imminent, that spouse’s take in the distribution will likely be reduced by $25K. But your attorney might want to do a pendente lite motion to impose interim restraints on marital assets — meaning nobody touches anything till the judge makes a determination or until there’s a settlement agreement.

(7) WHAT ARE THE GROUNDS I CAN GET A DIVORCE? In New York you can get a divorce on the following grounds: abandonment, constructive abandonment, separation agreement, judgment of separation, incarceration, cruel and unusual punishment and adultery. (And “no fault”)

(8) WHICH GROUND IS THE EASIEST? WHICH IS HARDEST? Constructive abandonment is easiest. Adultery is hardest because the burden is on the wronged spouse to prove the adultery. And sometimes the spouse cannot even though it is as clear as day. A divorce by separation agreement can be easy too, if all things work according to plan and nobody “turns” on the other.

(9) HOW MUCH ARE THE COURT FEES? $210 for the index number, $125 for the note of issue, $8 for the certified copy of the judgment. For a contested divorce: $95 for an RJI, $45 for motions and cross motions. There may be additional costs depending. For example, a stipulation of settlement is $35.

(10) HOW SOON CAN I RE-MARRY? As soon as the ink dries on the divorce judgment and a notice of entry has been filed.

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Last updated March 2017.

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