Legal Support When Your Marriage Ends
For many, the divorce process can illicit feelings of fear and uncertainty. When issues such as child custody, child visitation and alimony/maintenance are in dispute, sentiments of anger and resentment also arise. If you feel your rights and interests are at stake, you should seek the knowledge of an experienced divorce attorney to represent your case.
At the Law Offices of David Bliven, we represent our family law clients through all different types of divorces: uncontested, contested and no-fault. In a contested divorce situation, we believe that aggressive negotiation and mediation is a key component to an amicable resolution. Yet if necessary, we will provide skilled representation for our clients at trial.
Who Owes What To Whom?
New York divorce law was created with the intent of ensuring that each party to a divorce is adequately represented from the very beginning. A recent statute states that there is now a presumption within the law that the spouse with higher income shall pay interim attorney’s fees for the spouse with the lower income. In many cases, this can level the playing field for all parties involved, while in some cases, it can provide a disincentive to resolve the case in a timely manner.
When minor children are involved, it can be especially important to keep open lines of communication between you and your spouse. Often times, a child will be appointed his or her own attorney to represent his or her best interests throughout the process. Our ultimate goal is to attain results that will benefit both you and your child.
File for divorce now – or pay off debts first?
Sometimes it makes better sense to pay off one’s debts prior to filing for divorce.
If you own a house, and that house was bought during the marriage, then you’ll otherwise need your spouse’s consent to sell that house once a divorce is filed. However, if the title & mortgage are both in your name, you can opt to sell the house to pay down debts prior to the divorce being filed. This way, you’re freeing up cash to better afford the divorce litigation, on the one hand, while eliminating an asset that your other spouse may be able to claim a share of on the other. This is all the more advisable if your debts are substantial & you can barely make ends meet between your mortgage, living expenses, credit cards, etc. Rather than have your spouse (or rather your spouse’s attorney) smell blood in the divorce case by claiming the asset, it may be better to sell now.
This is all the more true if the house was pre-marital. If title to the house in this instance was not also placed in your spouse’s name, then you’re free (prior to the divorce being filed) to sell with or without your spouse’s consent. Once the divorce is filed, however, you’re restricted from selling off assets.
Is it better to get a “Legal Separation” or just file for Divorce?
Prior to October, 2010, one generally needed to make an allegation of fault against his/her spouse in order to get divorced. One common way around that was to do a separation agreement. The law provided that if the parties remained separated pursuant to a Separation Agreement for more than 1 year, then either could file for an uncontested divorce based on the agreement. This indeed was one of the leading reasons why people prior to the law’s amendment filed for separation as opposed to divorce. Now that New York passed “No-Fault” Divorce, however, there is no longer any reason to allege fault in order to get divorced – one only needs to state that the marriage has broken down “irretrievably” for more than 6 months.
Once the parties are divorced, then generally if one is covered by his/her spouse’s medical insurance, their insurance will terminate. This is because very few plans cover “ex-spouses.” As such, a leading reason why some people still choose to get a legal separation first is to preserve continuity of insurance coverage for at least another year. With the Separation Agreement, the parties can resolve every other issue which would otherwise be brought up in the divorce. The agreement would cut-off accrual of marital assets & debts, and can equitably divide them. The agreement can also provide for custody, visitation, maintenance (i.e., alimony) & child support. The only thing the agreement cannot do is actually terminate the marriage. That takes a divorce proceeding – which either party can file for upon the expiration of 1 year (or later) from the date the agreement is signed.
I’m not sure where my spouse lives – what can I do?
Sometimes people separate from their spouse & thereafter that spouse disappears. The question becomes how to proceed with a divorce case if the spouse’s whereabouts cannot be ascertained.
Ultimately the spouse needs to be served with the divorce papers. Thus, one can check informal methods to locate one’s spouse, such as friends, family members or associates of your spouse. One can also do informal internet searches – if one can get a good address that way, one can send a process server to that address in an attempt to serve him/her. If a good address cannot be ascertained, one will ultimately need to hire a private investigator.
The P.I. must conduct a formal “diligent search” – the search does not ultimately need to actually locate the spouse, but the P.I. must document to the Court that s/he has looked for the spouse in a variety of ways, such as credit reports, public records, etc. If the spouse still cannot be located, then one will need to take the diligent search report & file a motion with the court asking for “publication notice,” which basically means running a copy of the summons in a newspaper designated by the Court. If the Court approves the motion, then one may proceed to run the summons in the newspaper – same will then be considered “valid service” and one may thereafter proceed with the divorce on default.
Why not do a “Cheap Divorce”?
There are many signs & Ads posted throughout the Bronx, Yonkers, New Rochelle & Mount Vernon advertising to do divorces for “$399.” Many such ads strongly imply you’re hiring an attorney or that they’re just as good as attorneys – guess again.
There’s one such Ad claiming to “do all the paperwork for $399.” Let’s call them “Joe’s Professional Services.” Here’s the problem: they are basically a typing service, and cannot give people legal advice. Thus, when people walk into their office & put down $399, they give them the same forms people can obtain for free off the internet (as if they’ve done something at this point for the money), tell the people to “fill them out as best they can on their own,” give them a pen while they sit in their waiting area doing their work for them, and when the people are done, they spent 5-10 minutes typing the forms for them. When they’re done, they hand the forms back to the people & tell them, “Ok, good luck, go file these forms with the Court & wait 6 months. Have a good day!” And if the Court rejects the forms because there are errors on them, they either refuse to correct the mistakes – or tell the people that to correct them will cost another $399. What a rip-off!
Unsuspecting clients of these companies don’t know any better – especially when they imply in their name that they are “Professionals.” Another example of why people are paying more for these services: many attorneys (myself included) will charge a low-cost consultation fee to review paperwork for potential clients. Thus, If they wish to obtain the forms from the court’s website & fill it out on their own, then at the consultation the paperwork can be reviewed (& corrections suggested) for less money than the “Document Service Companies” charge to type the forms. Then if the person needs the forms typed, they can simply take the forms to an Office Store (like Fedex Office) & have them type the forms, probably for $50 or less. Thus, the person has paid less to have the forms typed and reviewed by an Attorney than they would spend to have the forms done by a Document Service Company – and with much less potential for mistakes. There’s an old adage I’m fond of: “The Poor Pay More for Less!” This is certainly true if one goes to a “Document Service Company” for an Uncontested Divorce.
What are the immigration consequences for a Divorce?
Some people get married to sponsor an immigrant so s/he can obtain a green-card. However, when one wishes to terminate the marriage later on, there could be consequences.
The I-130 immigration form generally requires the sponsor to sign an “Affidavit of Support” pledging to financially support the spouse. The consequence is that if the spouse ever applies for public assistance of any sort, the government can use the Affidavit of Support to sue the sponsor to recoup the amount of benefits given to the immigrant spouse. If so, then if a divorce is contemplated, the sponsor spouse should also contact an immigration attorney to terminate the Affidavit of Support.
Bear in mind, the Affidavit of Support may also be used by the immigrant spouse to claim alimony (i.e., maintenance). S/he will argue that the sponsor spouse has already pledged to support him/her, and thus the Court should continue that support by awarding alimony. Finally, one must consider that a divorce may halt immigration proceedings (if they are ongoing), so both parties are well advised to consult an immigration attorney on the consequences of a divorce filing.
How are Property & Assets Divided in a New York Divorce case?
New York is an “equitable property” state. This means that any property, asset and/or debt accrued during your marriage is considered marital property, and therefore subject to distribution between parties.
“Equitable”, otherwise known as “fair”, means that the court will use its discretion to determine how and to whom property will be distributed. Some examples of marital property are as follows: homes and other real estate properties, retirement plans (pension, 401(k), etc.), professional degrees and licenses, art, decor and other personal property, as well as cars, boats, RVs, etc. (this is a non-exhaustive list).
Additionally, the “appreciation” in value of some separate property may also be distributed to the non-title-holding spouse, if s/he can prove sufficient direct/indirect efforts which allowed the appreciation to occur. And because any distribution done by the Court must be “equitable,” this means in some case it is 50% but in other cases the court could use a higher (60+%) or lower (0-40%) percentage.
Moreover, the Court may distribute some assets (like a house or bank account) 50%, and other assets (like the value of a degree) only 10-20% within the same case.
Experience on Your Side
With 20 years of experience, we have helped clients successfully navigate their complex divorces. When you come into one of our New York offices, our legal team will thoroughly assess your situation. We encourage our clients to work toward an agreement that is best for them and their family through negotiation and mediation. If this is not possible, we have the skill and experience that is necessary to take your case to trial.
If you would like to speak with a lawyer, contact the Law Offices of David Bliven. We provide initial case assessments and can set up full case strategy consultation as needed. To get in touch, call us at (914) 468-0968 or reach us online.