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Posted on December 15, 2023

Initiating Divorce: A How-To Guide

Divorce is one of the most challenging decisions a person can face in their life. It’s a pivotal moment, marking the end of a chapter and the beginning of another. The process involves a great deal of emotional complexity, legal intricacy, and financial implications. Consequently, the way you approach the subject and communicate your decision to your spouse can significantly impact the process. It’s crucial to consider several factors to ensure you handle the situation with care, respect, and dignity.

The process of asking for a divorce can be daunting, and it’s crucial to seek legal advice to navigate through this intricate journey. Our New York divorce attorney is experienced in dealing with the complexities of divorce cases, providing sound advice on how to communicate your intentions to your spouse effectively and tactfully. At the Law Office of Richard Roman Shum, our team of Manhattan divorce lawyers can guide you through the legal proceedings, helping you understand your rights, responsibilities, and the potential outcomes of different scenarios. Call us today at (646) 259-3416. Our team can provide the necessary support and guidance to make the process as smooth and straightforward as possible. 

Understanding the Divorce Process in New York

In New York, either spouse can file for divorce. The state recognizes both fault-based and no-fault divorces. A no-fault divorce can be filed when one or both spouses claim that the marriage has been irretrievably broken for at least six months, whereas fault-based divorce can be sought on grounds including adultery, cruelty, abandonment, or imprisonment. New York divorce laws also include provisions for equitable distribution of marital property, which means the court divides marital property in a way that is fair but not necessarily equal.

Residency Requirements in New York

Before filing for divorce in New York, it’s important to understand the state’s residency requirements. At least one of the following points has to be satisfied to meet the requirement:

  • At least one spouse must have been a New York resident for a continuous period of two years before filing.
  • If the couple was married in New York, and at least one spouse has lived in the state for a continuous year, they can file for divorce.
  • If both spouses are residents of New York at the time of filing, and the grounds for the divorce occurred in the state, they can file without regard to the length of residency.

These residency requirements ensure that New York courts have jurisdiction over your case and can make legally binding decisions regarding your divorce.

Types of Divorce in New York

Divorce proceedings can be categorized into two primary types: uncontested and contested. Each type represents a different pathway to the dissolution of a marriage, carrying its own set of characteristics, requirements, and potential challenges.

Uncontested Divorce

An uncontested divorce is when both parties agree on all aspects of the divorce, including property division, child custody, and spousal support. This is typically a smoother and quicker process as there are no disputes for the court to resolve. Parties involved in an uncontested divorce often work with their respective attorneys to draft a settlement agreement, which is then submitted to the court for approval. Often, no court appearances may be required. 

Contested Divorce

A contested divorce, on the other hand, is when the parties cannot agree on one or more issues, and the court must decide. These divorces are often more complex and time-consuming. They may require a trial where both parties present evidence and arguments for their desired outcomes. These cases can be challenging, and it’s essential to have a knowledgeable Manhattan divorce lawyer to represent your interests and guide you through the process.

Understanding the divorce process in New York is crucial for anyone contemplating divorce. From residency requirements to the different types of divorce, each aspect plays a key role in how the divorce proceedings will unfold. A Manhattan divorce lawyer can help you navigate these complexities, ensuring that you understand your options and are able to make informed decisions that reflect your best interests.

How to Tell Your Spouse You Want a Divorce

Divorce is a difficult topic, fraught with heavy emotions and implications. However, when it becomes inevitable, it’s crucial to approach your spouse with clarity, compassion, and respect. Here’s how to tell your spouse you want a divorce.

  • Start by preparing yourself emotionally. Understand that the conversation will be difficult and you may receive a strong reaction. Try to anticipate the emotions that may arise and think about how you’ll handle them. Consider speaking to a counselor or therapist to help navigate your feelings.
  • Timing is crucial. Choose a calm, private environment and a time when both of you are not preoccupied or stressed. Do not rush the conversation; ensure you have ample time to talk things through.
  • When you start the conversation, be clear and direct about your intentions. Use “I” statements to express your feelings, such as “I feel unhappy” or “I have tried, but I cannot continue”, instead of blaming your spouse. This will help you communicate your feelings without provoking defensiveness.
  • While it’s important to be firm about your decision, also show empathy towards your spouse. Understand their feelings and reactions, even if they’re negative. Remember, this news is likely to be as difficult for them to hear as it is for you to tell.
  • Avoid getting into the specifics of splitting assets or custody during this initial conversation. This discussion is about your emotional disconnection and the decision to divorce, not about the logistics, which can be discussed later.

Remember, it’s important to maintain respect and compassion throughout the process, despite the pain and difficulties. After all, this person was once your partner in life.

Preparing for a Divorce in New York

Preparation is a key aspect of the divorce process. Ensuring you have all the necessary documentation, a clear understanding of your financial situation, and a well-thought-out plan for any children involved can help make the process smoother and more manageable.

Gathering Essential Documents

The first step in preparing for a divorce process is compiling all the relevant documents. These include:

  • Financial records: Tax returns, bank statements, investment and retirement accounts, property deeds.
  • Personal documents: Birth certificates, social security cards, and passports for you and your children.

These documents provide a detailed overview of your financial circumstances and are crucial for discussions about property division, child support, and spousal maintenance.

Identifying Marital Assets and Debts

Another critical step in preparing for divorce is identifying and understanding the full extent of your marital assets and debts. Marital assets can include properties, vehicles, investments, retirement accounts, and personal belongings acquired during the marriage. Conversely, marital debts might comprise mortgages, car loans, credit card debts, and other liabilities incurred during the marriage.

It’s important to note that New York is an equitable distribution state, which means that marital assets and liabilities are divided in a manner considered fair by the court, but not necessarily equally. Having a comprehensive understanding of your assets and debts can help you and your attorney negotiate a fair distribution.

Considering Child Custody and Support

If you and your spouse have minor children, considering their future custody and support arrangements is a vital part of the divorce preparation process. New York courts prioritize the best interests of the child when making decisions about custody and support.

Child custody involves decisions about who the child will live with (physical custody) and who will make important decisions about the child’s upbringing (legal custody). Child support, on the other hand, refers to the financial support a non-custodial parent contributes towards a child’s living and education costs.

It’s important to remember that these decisions can have long-lasting impacts on the child’s life. Therefore, it’s advisable to discuss potential arrangements with a competent Manhattan divorce lawyer who can guide you in making decisions that are in the best interest of your child.

Initiating the Divorce Process

Starting the divorce process involves a few key steps. These include choosing the appropriate grounds for divorce, filing the initial legal documents, and serving the divorce papers to your spouse. Each step is an integral part of the process and requires careful thought and planning.

Choosing the Right Grounds for Divorce

The grounds for divorce set the tone for the entire divorce process. They form the basis for the dissolution of the marriage and can significantly influence how smoothly the process unfolds.

Fault-Based Grounds

Fault-based grounds imply that one spouse is to blame for the dissolution of the marriage. In New York, these grounds include:

  • Cruel and Inhuman Treatment: To claim this ground, you need to prove specific instances of cruelty that occurred within the last five years. Merely arguing with your spouse or not getting along is insufficient. The cruelty must be severe enough that the plaintiff is in physical or mental danger, and it would be unsafe or inappropriate for them to continue living with the defendant.
  • Abandonment: For this ground, the defendant must have abandoned the plaintiff for a duration of at least one year. Abandonment could mean either physically leaving the marital home with no intent of returning, or a refusal to engage in sexual relations with the plaintiff, referred to as “constructive” abandonment.
  • Imprisonment: This ground applies when the defendant has been incarcerated for three or more consecutive years. The defendant must have been sentenced to prison after the commencement of the marriage. The plaintiff can claim this ground either while the defendant is still in prison or up to five years following their release.
  • Adultery: To assert this ground, the plaintiff must provide evidence that the defendant committed adultery during the marriage. This can be challenging to prove as it requires testimony from someone other than the plaintiff or defendant.
  • Divorce Following a Legal Separation Agreement: For this, both the plaintiff and defendant must sign and file a legally valid separation agreement and live separately for a year. The separation agreement must meet certain legal criteria to be considered valid.
  • Divorce after a Judgment of Separation: This ground, rarely used and sometimes referred to as a “conversion,” requires the Supreme Court to issue a judgment of separation, after which the married couple must live apart for one year.
  • Living apart pursuant to a separation agreement: The couple has lived apart for at least a year according to a legally valid separation agreement, and the spouse who is filing has substantially complied with the terms of the agreement.

No-Fault Divorce

In 2010, New York became the final U.S. state to implement a bona fide “no-fault” divorce law. This now allows any spouse pursuing divorce in New York to assert under oath via a Verified Complaint that their marital relationship has irreparably deteriorated over a minimum period of six months.

This kind of claim is referred to as “irreconcilable differences” in other states. The specifics of these differences can vary case by case, but fundamentally, it implies a six-month period where the spouses have failed to maintain harmony in their relationship.

There’s no legal defense needed against a no-fault divorce claim. However, the divorce will only be granted once all financial matters, including spousal and child support, fair division of marital assets and liabilities, attorney fees, and expenses, along with issues of custody, have been settled.

Selecting the appropriate grounds for divorce is an important first step in the process. The grounds chosen can impact the length, cost, and overall nature of the divorce proceedings. A divorce lawyer can provide valuable advice on which ground is most appropriate for your specific circumstances, considering the nuances of your situation and the potential implications of each choice. They can also help you understand the legal requirements for each ground and guide you through the process of filing for divorce on these grounds.

Filing a Summons and Complaint

The divorce process officially begins when you file a summons and complaint with the court. The summons informs your spouse that you are initiating a divorce action, while the complaint outlines the grounds for your divorce and your requests regarding property division, spousal support, child custody, and child support.

When preparing these documents, it’s critical to be thorough and accurate. Any errors or omissions can potentially delay the divorce process or impact the final divorce judgment. A Manhattan divorce lawyer can help you prepare these documents accurately and efficiently.

Serving Divorce Papers to Your Spouse

After you have filed the summons and complaint, the next step is to serve the divorce papers to your spouse. This is an important step as it formally notifies your spouse of the divorce action and gives them an opportunity to respond.

In New York, divorce papers must be served in person, unless the court grants permission for an alternate method of service. The papers can be served by a professional process server, a friend or relative over 18 who is not involved in the divorce, or by a sheriff or marshal.

Once the divorce process has been initiated, there are several stages that you and your spouse will need to navigate. Each stage carries its own set of challenges, expectations, and legal requirements, making it crucial to understand what each involves.

Responding to a Divorce Summons

If you’re the spouse who has been served with a divorce summons and complaint, your first task is to respond. In New York, you typically have 20 days to respond if you were served personally and 30 days if the papers were served in any other manner.

Your response, or answer, should address each of the statements in the complaint. You can agree or disagree with the statements, and you also have the opportunity to make your own requests regarding property division, alimony, child custody, and child support.

Failing to respond in a timely manner can result in a default judgment, where the court grants the requests of the filing spouse. Therefore, it’s crucial to respond promptly and accurately, ideally with the assistance of a Manhattan divorce lawyer.

Discovery Process in New York Divorce Cases

The discovery process is a crucial phase of the divorce proceedings in which both spouses disclose all relevant information about their finances, assets, debts, and other issues pertinent to the divorce.

This process can involve written questions (interrogatories), requests for documents, depositions (sworn out-of-court testimony), and admissions of fact. It’s designed to ensure both spouses have all the necessary information to negotiate a fair settlement or prepare for trial.

The assistance of a Manhattan divorce lawyer can be invaluable in navigating the discovery process, ensuring that all relevant information is disclosed and that your rights are protected.

Negotiating Settlements

Negotiations are a key part of many divorce proceedings, as they allow spouses to exert more control over the outcome. Successful negotiation depends on a thorough understanding of each party’s rights, financial circumstances, and the best interests of any children involved.

Understanding the Importance of Negotiations

Negotiations during a divorce process hold significant importance due to several reasons. They can control the outcomes, reduce stress, and fast-track the process. Here’s why this stage is crucial:

  • Control over outcomes: Negotiating a settlement gives you and your spouse more control over the final terms of your divorce, including property division, alimony, child custody, and child support.
  • Less stress: Negotiations can be less emotionally taxing than a full trial.
  • Speed: A mutually agreed settlement can often be finalized more quickly than a court-decided divorce.

Key Areas for Negotiation

During divorce negotiations, several key areas need to be addressed. These include property division, spousal support, and issues related to child custody and support:

  • Property Division: Assets and debts acquired during the marriage need to be divided equitably. This includes real estate, vehicles, retirement accounts, household items, and financial liabilities.
  • Spousal Support: Also known as alimony, this involves one spouse providing financial support to the other after the divorce.
  • Child Custody and Support: Decisions need to be made regarding who will have physical and legal custody of the children, visitation rights, and the financial support to be provided for the children’s upbringing.

Court Hearings and Trial

The progression of a divorce case often involves several court appearances and potentially a trial. These stages are crucial in shaping the outcome of the divorce. They include preliminary and final conferences and, if necessary, a divorce trial.

Preliminary and Final Conferences

In the initial stages of a divorce case, the court facilitates preliminary and final conferences to help streamline the case and encourage settlement.

Initial Conference

The preliminary conference, often referred to as the initial conference, is the first formal court proceeding in a divorce case. The purpose of this conference is to:

  • Identify the contested issues: Parties make clear what they agree on and what they dispute. This could include matters of child custody, property division, alimony, and child support.
  • Establish a timeline: The court sets a schedule for key dates and deadlines, such as when discovery must be completed, when motions can be filed, and a tentative date for trial if necessary.
  • Facilitate settlement discussions: The court may encourage parties to negotiate and potentially reach an early settlement.

Final Conference

A final conference often occurs after the discovery phase but before a trial. The purpose of the final conference is to:

  • Review the status of the case: The court assesses what’s been done and what remains to be resolved.
  • Encourage settlement: The court usually encourages parties to resolve their disputes through negotiation or mediation, reducing the need for a trial.
  • Prepare for trial: If a trial seems inevitable, the court will review the trial readiness of the case, ensuring all necessary preparations are underway.

Divorce Trials in New York

If the parties in a divorce case cannot reach a settlement, the case goes to trial. The trial is a formal court proceeding where both sides present their cases and the judge makes a final decision.

Trial Preparation

The preparation for a divorce trial is extensive. It involves gathering and organizing evidence, preparing witnesses, and creating a trial strategy. Both parties, typically with the assistance of their attorneys, work to build a robust case that supports their desired outcomes.

Trial Proceedings

During the trial, each party presents their case. This involves presenting evidence, questioning witnesses, and making arguments to the judge. The judge listens to all the evidence and arguments before making a decision.

Judgment and Appeals

Once the trial concludes, the judge makes a decision on all contested issues. This judgment is legally binding and sets the terms of the divorce. If either party disagrees with the judgment, they can appeal to a higher court. However, successful appeals are rare and typically require demonstrating that a clear legal error occurred during the trial.

Asking for a divorce is a significant step that requires thoughtful consideration and preparation. It’s important to approach the conversation with clarity, empathy, and a willingness to navigate the subsequent stages carefully. Remember, your goal is to express your decision in a way that respects the feelings of your spouse and paves the way for an amicable divorce process. Your approach can significantly influence how smoothly the divorce process unfolds, affecting not just you and your spouse, but any children involved as well.

A New York divorce attorney can be an invaluable ally during this complex process. From helping you prepare for the initial conversation to guiding you through negotiations, court hearings, or even a trial, a lawyer can provide the legal experience and support you need. Divorce is a challenging journey, but with the right approach and professional assistance, you can navigate it in a manner that respects everyone’s well-being and leads to a fair resolution. Contact the Law Office of Richard Roman Shum today at (646) 259-3416 to schedule a consultation with our Manhattan divorce lawyers.

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