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Posted on February 8, 2024

What Can Be Used Against You in a New York Divorce

Navigating the complex and often emotionally charged world of divorce proceedings is never easy. In New York, divorces can be long and often involve a myriad of potentially damaging factors, whether psychologically, socially, or financially. As a result, individuals facing the prospect of divorce in New York need to be aware of the various circumstances that can be used against them in order to protect their interests and ensure a fair resolution to their case.

Understanding the legal landscape of divorce in New York is a vital first step in safeguarding your future. However, the skilled help of a knowledgeable New York divorce lawyer can be invaluable in navigating this complicated process. At the Law Office of Richard Roman Shum, our experienced divorce attorney is well-versed in the intricacies of New York divorce law and can help you identify the circumstances that may be used against you in your case, while also advocating for your rights and interests. Contact us today at (646) 259-3416 to schedule a consultation and learn more about how we can help you through this challenging time.

Fault-Based Divorce Grounds

In New York, divorce can be granted based on both fault-based grounds and no-fault grounds. Fault-based grounds require one party to prove that the other spouse engaged in certain behaviors that caused the breakdown of the marriage. Some fault-based grounds for divorce in New York include:

  1. Cruel and Inhuman Treatment: This ground pertains to physical or mental cruelty by one spouse to the other, making it unsafe or inappropriate for the spouses to continue living together. This may involve verbal abuse, physical violence, or psychological mistreatment. To prove this ground, the accusing spouse must provide clear evidence of the cruel treatment and show that it occurred during the last five years.
  2. Abandonment: This ground refers to when one spouse has abandoned the other without reason or consent for a continuous period of at least one year. Consent to separation is not considered abandonment, and the spouse seeking divorce must prove that the other spouse left without any intention of returning. Abandonment can also be constructive if a spouse refuses to engage in sexual relations without any valid reason or justification during the same time frame of one continuous year.
  3. Adultery: In this case, one spouse accuses the other of engaging in extramarital sexual relationships. However, proving adultery in court can be challenging, as direct evidence of the infidelity is often required, such as photographs, videos, or witness testimony. There are various defenses to adultery, including forgiveness, voluntary separation, and consent or encouragement by the accuser.
  4. Imprisonment: This ground for divorce can be used if one spouse has been imprisoned for three or more consecutive years during the marriage. The accusing spouse can file the divorce action after three years but before returning from imprisonment.

No-Fault Divorce Grounds

No-fault divorce allows couples to end their marriage without placing blame on either party. The spouse filing for divorce must state that the marriage has irretrievably broken down for at least six months. The court will not grant a divorce until the couple has resolved all other issues, such as property division, spousal support, child custody, and visitation rights.

Procedure for Filing for Divorce in New York

Filing for divorce in New York involves a series of steps, which include preparing and submitting legal documents, serving the divorce papers to the other spouse (or their attorney), and attending court proceedings.

Preparing and Filing Divorce Papers

The first step in the divorce process is to prepare the necessary paperwork. The person filing for divorce (the plaintiff) must complete several forms, including a Summons and Complaint or a Summons with Notice. These documents explain the grounds for divorce, provide the necessary demographic information, and outline the desired terms for asset division, child custody, alimony, and other matters.

The plaintiff must then file the divorce papers with the appropriate County Clerk in the county where they or their spouse resides. There is a filing fee associated with this process, which varies depending on the county.

Serving Divorce Papers

After filing the paperwork, the plaintiff must serve the divorce papers to the other spouse (the defendant) within a specific time frame, usually 120 days. The service must be carried out by someone other than the plaintiff, such as a professional process server, a friend, or a family member over 18 years old.

The defendant must then respond to the divorce papers within 20 or 30 days, depending on the method of service. The response can be an answer, which contests the terms and grounds of the divorce or an acknowledgment in case an agreement has been reached.

Attending Court Proceedings

If the couple cannot reach a settlement through negotiation, mediation, or collaborative law, the case will proceed to trial. In court, both spouses, along with their attorneys, will present their evidence and arguments before a judge, who will then make the final decisions regarding divorce terms, such as property division, spousal support, child custody, and visitation rights.

It is essential to acknowledge that the divorce process in New York can be a complex and emotionally challenging experience. Seeking the guidance of a qualified divorce attorney can minimize stress, facilitate an amicable settlement, and help protect your rights and interests during the process.

Requirements for a No-Fault Divorce

The criteria for a no-fault divorce vary from state to state, but some common requirements may include:

  • Residency: Most states have residency requirements before a no-fault divorce will be granted. This means that at least one spouse must have lived in the state for a specified length of time before filing for divorce. The residency period typically ranges from 3 months to a year.
  • Grounds for divorce: In a no-fault divorce, the grounds for divorce are usually “irreconcilable differences” or “irretrievable breakdown of the marriage.” The spouse filing for divorce simply has to state that the marriage is over and that there is no chance for reconciliation.
  • Waiting period: In some states, there is a waiting period from the time a no-fault divorce is filed until it is finalized. Waiting periods vary by state but can range from a few weeks to several months.
  • Spousal agreement: In many cases, both spouses must agree to the terms of the divorce, such as division of property, alimony, and child custody. This is referred to as an uncontested no-fault divorce. If the spouses do not agree, they may need to go through a contested divorce, which can be more time-consuming and costly.

Impact of Adultery on Grounds for Divorce

In New York, adultery is considered a ground for divorce but it can be challenging to prove in court. To succeed in claiming adultery as a justification for divorce, you must provide substantial evidence that your spouse engaged in sexual relations with another person during your marriage. This evidence must be clear and convincing, as suspicions or allegations are not enough.

Gathering Evidence

There are several ways in which an individual can gather evidence to prove that their spouse has engaged in adultery. Some common methods include:

  1. Hiring a private investigator: Many people choose to retain a private investigator to gather evidence of their spouse’s infidelity. A professional investigator can conduct surveillance, take photographs or videos, and document other activities that could support an adultery claim.
  2. Obtaining witness testimonies: Witness statements from individuals who have seen or heard about the adulterous behavior can serve as crucial evidence in court. These statements can involve friends, family members, coworkers, or any other person with knowledge of the affair.
  3. Presenting concrete proof: Concrete proof of adultery can include photographs, videos, or recorded conversations between your spouse and their lover. Text messages or emails exchanged between your spouse and the person with whom they had an affair can also serve as evidence of adultery.
  4. Uncovering financial evidence: Bank statements, credit card bills, or other financial documents that demonstrate an expenditure related to the affair may be considered evidence of adultery. For example, hotel room charges, restaurant bills, or gifts purchased for the lover could serve as proof in court.
Methods of Gathering Evidence to Prove Adultery Description
Hiring a private investigator Retaining a professional investigator to conduct surveillance, capture photographs or videos, and document activities related to the adulterous behavior.
Obtaining witness testimonies Collecting statements from individuals who have witnessed or have knowledge of the affair, such as friends, family members, coworkers, etc.
Presenting concrete proof Providing photographic evidence, videos, recorded conversations, text messages, emails, or any other tangible evidence that proves the occurrence of adultery.
Uncovering financial evidence Gathering bank statements, credit card bills, or other financial documents that indicate expenditures related to the affair, such as hotel charges, restaurant bills, or gifts for the lover.

Challenges in Proving Adultery

It is important to note that even if you are successful in obtaining evidence of your spouse’s adultery, corroborating these findings in court can be difficult. New York law requires that adultery be proven through “clear and convincing” evidence, which is a high standard to meet.

Additionally, proving adultery can involve revealing sensitive or embarrassing information about your personal life, which can be emotionally challenging. Due to the difficulties associated with proving adultery in New York, many people choose to file for a no-fault divorce, citing “irreconcilable differences” as their basis for seeking the dissolution of their marriage.

For those who are involved in a case of domestic violence and are seeking to file for divorce, having a support system and legal representation when navigating the divorce process is important. The following steps can help in increasing the chances of a favorable outcome:

  1. Seek legal advice: Hire an experienced attorney well-versed in family law and domestic violence cases. They can help protect the victim’s rights and provide guidance throughout the process.
  2. Collect evidence: Gather and document any evidence related to domestic violence, such as photos of injuries, threatening messages or emails, medical records, and witness statements.
  3. Develop a safety plan: Work with the attorney, friends, family, or a support organization to develop a safety plan that includes a safe place to stay, financial resources, and emergency contacts.
  4. File for a protective order: Based on the attorney’s guidance and the state’s laws, a victim should file for a restraining or protective order against the abusive spouse to ensure their safety during the divorce process.
  5. Advocacy and support: Find local resources such as domestic violence shelters, counseling services, and support groups that can offer practical and emotional support throughout the divorce process.

Establishing Substance Abuse or Mental Health as a Factor in Divorce

For substance abuse or mental health issues to impact divorce proceedings, the existence of these issues must be established and presented as evidence in the case. This may involve obtaining records of substance abuse treatment, medical records documenting mental health treatment, or testimony from witnesses who can attest to the problems.

In some cases, expert witnesses, such as substance abuse counselors or mental health professionals, may be called upon to testify about the nature of the issues and their impact on the individual and the marriage. It’s essential for individuals involved in divorce proceedings with these concerns to seek experienced legal counsel who can help them navigate the process and present relevant evidence to the court.

Working with Your Divorce Lawyer

Once you have hired a divorce lawyer, there are several steps to take to ensure a productive working relationship:

  • Be Honest: To allow your lawyer to represent your best interests, you must be completely honest about all aspects of your case. This includes providing full disclosure of assets, debts, and any other relevant information.
  • Communicate: Maintain open lines of communication with your divorce lawyer. Inform them of any changes in your situation or concerns you may have. If you don’t understand something, don’t hesitate to ask for clarification.
  • Be Organized: Gather all relevant documents, including financial records, real estate documents, and custody agreements. This will help your divorce lawyer develop a strong case on your behalf.
  • Be Patient: Understand that the divorce process can be lengthy and may not always go as planned. Be patient with your lawyer and trust their expertise as they navigate the legal system on your behalf.

By taking the time to find the right divorce lawyer, promptly providing them with all necessary information, and maintaining open communication, you can help ensure a fair and efficient divorce process in New York.

Going through the complexities of New York divorce law can be an overwhelming and emotionally charged process. There are various factors to consider, including fault-based grounds, evidence requirements, and the difficulties of proving adultery or establishing mental health and substance abuse issues. It is crucial to be well-informed and prepared. Having the support of a skilled New York divorce lawyer can make a significant difference in achieving a fair and just outcome for your case.

At the Law Office of Richard Roman Shum, we can provide the guidance necessary to navigate the intricacies of divorce in New York. Our experienced divorce attorney is dedicated to helping you understand and address the factors that may impact your case. You don’t have to go through this challenging journey alone. Contact us at (646) 259-3416 to schedule a consultation and let us guide you toward a more secure and positive future.

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