Divorce Basics: The FAQ’s

By: Daniel E. Clement, Esq.

Do I need to hire an attorney?

It is not mandatory that you hire an attorney and you may represent yourself. However, given the complexity of the issues, it may be beneficial to employ the services of a professional who is knowledgeable with the law and experienced in the field.

How is the divorce commenced?

An action for divorce is commenced by the personal service of a summons upon your spouse. Sometimes, the summons is accompanied by the complaint which sets forth the grounds for the divorce.

Can I receive child support or maintenance before I am divorced?

Yes. You can make a motion requesting that the Court grant you temporary maintenance and/or child support. If ordered to pay, your spouse will be required to you these sums during the action for divorce.

I cannot afford a lawyer. What can I do?

In addition to ordering your spouse to pay you maintenance or child support during the divorce, the court could require your spouse to pay your attorney and any experts you may need to hire.

What are the grounds for divorce?

In New York, there are six grounds for divorce. Of the six grounds, four of the are based on the "fault" of one of the parties. They are:

1. cruel and inhuman treatment;

2. abandonment for one or more years;

3. imprisonment for three or more years; and

4. adultery.

Living apart for one year under a separation judgment granted by a Court or under a separation agreement signed by the parties are the two grounds that are not fault based.

Will marital fault impact on my rights to a property settlement?

Generally, marital fault does not impact on the economic issues of the divorce. However, there are exceptions, particularly when one spouse is found to have wasted marital assets.

How quickly can I be divorced?

There is no way to predict with certainty how long it will take to obtain a divorce. The time it takes to obtain a divorce differs from case to case and is solely dependent upon the extent to which the divorce and any of the related issues are contested.

If the divorce is not contested (that is, both spouses agree to the divorce and have worked out all issues relating to the division of marital assets, child custody and support), the divorce can be processed by the Court and granted quite quickly.

Can my spouse and I retain the same attorney?

No. Divorce, even when uncontested, is an adversarial process. You and your spouse have conflicting interests. Since an attorney could only represent one of your interests, it would be improper and unethical for an attorney to represent both spouses.

How much will a divorce cost?

The cost of the divorce is directly related to the complexity of the case and to the extent to which the issues are contested. An uncontested divorce will obviously cost much less than a divorce where, for example, there exist hotly contested issues as to child custody or the division of marital assets.

An attorney will generally require the payment of a retainer at the outset of the representation. You can expect to be billed on an hourly basis for work performed in the course of the representation. If the initial retainer was insufficient to cover all the legal fees and costs, you will receive periodic invoices, which you are expected to pay promptly.

In addition to paying your attorney, you will be responsible to pay court filing fees and the other costs incurred in the course of the divorce.

What if my spouse does not consent to a divorce?

Even if your spouse does not want a divorce, you may still be able to obtain one; your spouse cannot force your to remain married. In a contested divorce, you will be forced to prove, at trial, that the grounds for the divorce are true. If you can prove your case, you will be granted at divorce. On the other hand, if you fail to establish a grounds for divorce, then your divorce will be denied.

Is there always a trial?

No. Most cases settle. While it may appear at the commencement of your case that the divorce will be contested and that you will be forced to go to trial, that it is seldom the case. It generally takes some time for the parties to work out all the details of the divorce. Often with the aid of the parties’ attorneys and the intervention of the court, the parties are able to work out their differences and, ultimately, settle the divorce.

Will the Court papers in my divorce become public records which anyone can read?

No. By law, in order to protect the parties privacy, the courts limit access to papers in matrimonial cases to court personnel, the parties and their attorneys.