Madison County Divorce Lawyers

Divorce can be an emotional and stressful process, considering how much is at stake. You may want to know some of the basic laws and procedures in this area so that you have a general sense of what to expect.

To have your case heard in a New York court, you must meet certain residency requirements. One way to qualify is if both your spouse and you are residents of New York at the time you file for divorce, and the reason for your divorce occurred in New York. Alternatively, you can meet the residency requirement if either your spouse or you have lived in New York continuously for at least two years before filing. There's also a third option: if either your spouse or you have lived in New York for at least one year before filing, and you got married in New York, you lived in New York as a married couple, or the reason for your divorce happened in New York.

New York permits both fault divorce and no-fault divorce. A fault divorce means that the marriage is ending due to misconduct by a spouse, while a no-fault divorce doesn’t involve misconduct. These are the grounds for divorce in New York:

• Irretrievable breakdown of the relationship for six months (the main no-fault ground)
• Cruel and inhuman treatment in the last five years
• Abandonment for at least one year
• Imprisonment for three consecutive years
• Adultery
• Living apart for one year after filing a separation agreement
• Living apart for one year after a judgment of separation (not often used)

Another key distinction is between contested and uncontested divorce. An uncontested divorce occurs when both spouses agree to end their marriage and have resolved all issues related to their children, property, and debts. This type of divorce is typically quicker and less expensive. (The New York State Unified Court System even offers an Uncontested Divorce Program for couples who have no children under 21, have been separated for at least six months, and have settled all matters concerning their property and debts.) On the other hand, a contested divorce happens when the spouses cannot agree on one or more key issues, such as the reason for the divorce, asset division, or child custody arrangements.

To help make the divorce process smoother, two effective tools you can consider are mediation and collaborative law. Mediation involves a neutral third party, known as a mediator, who assists your spouse and you in having a constructive dialogue to resolve any disagreements related to your divorce. The mediator does not make decisions but helps facilitate communication and negotiation, aiming to reach an agreement that works for both parties. Collaborative law, on the other hand, is a process where both spouses and their respective attorneys commit to working together to reach a mutually acceptable settlement. This approach emphasizes cooperation and problem-solving rather than adversarial court proceedings.

When it comes to dividing marital property in a divorce, New York courts follow an equitable distribution principle. This means that property will be divided in a way that is fair but not necessarily even. Factors to consider during property division include:

• The length of the marriage and the age and health of the spouses
• The income and property of each spouse when they got married and when the divorce case started
• Any award of maintenance (alimony)
• The probable future financial circumstances of each spouse
• Wasteful dissipation of assets by either spouse
• Any record of domestic violence
• Tax consequences
• The need of a parent who has custody of a child to stay in the marital home

Separate property isn’t subject to division in divorce. This includes property that either spouse got before the marriage, as well as certain property like inheritances or gifts that only one spouse received.

It’s worth noting that the equitable distribution principle is only a default rule. If your spouse and you made a premarital or postmarital agreement providing for how you want your property divided in the event of a divorce, that agreement likely will be enforced if the court finds that it’s valid. This can give you more control over how your assets are divided and can help avoid potential disputes during the divorce process.

In some cases, one spouse may be required to pay alimony, known as "maintenance" in New York State, after the divorce. New York law includes specific formulas to calculate maintenance payments when the paying spouse’s income does not exceed a certain cap. However, judges have the discretion to deviate from these formulas if they determine that adhering to them would be unjust or inappropriate. The statute provides certain factors that might support this determination, including:

• The age and health of the spouses
• Their present or future earning capacity
• The standard of living during the marriage
• The equitable distribution of marital property
• Wasteful dissipation of marital property
• The need of a spouse to incur education or training expenses
• The availability and cost of medical insurance
• Contributions of the recipient spouse to the career of the paying spouse
• Tax consequences
• Any other factor that is just and proper

When the paying spouse's income exceeds the specified cap, the court typically uses the formulas to determine maintenance paid from income up to the cap. For any income beyond the cap, the court will assess whether additional maintenance should be paid and, if so, how much. This decision is made by considering the factors listed in the statute. Additionally, there is an advisory schedule that suggests the duration for which maintenance should be paid, although courts are not obligated to follow it.

If your spouse and you have minor children, establishing a child custody arrangement is a crucial part of the divorce process. Custody is divided into two main components: physical custody and legal custody. Physical custody determines where the child will live. Legal custody, on the other hand, involves the right to make important decisions about the child's upbringing, such as those related to religion, health care, and education. Both physical and legal custody can be awarded jointly to both parents or solely to one parent. If one parent receives sole physical custody, the other parent typically will be granted visitation rights.

Courts make custody decisions based on the best interests of the child. This may require considering a broad range of factors, such as:

• The parenting skills of each parent
• The health of the parents
• The ability of each parent to cooperate with the other parent and encourage the child’s relationship with the other parent
• The relationship of the child with other family members, such as siblings
• The preference of the child, if they are old enough
• Any history of domestic violence
• Evidence showing that one parent has primarily cared for the child

In addition to setting up custody arrangements, a court may require one parent to pay child support to the other. New York uses an income shares model for determining child support, which means that the judge will consider the incomes of both parents, not just the one who will be making the payments. As with maintenance calculations, there are statutory formulas to guide the calculation of child support. However, the court has the discretion to adjust the amount if strictly following the formulas would result in an unjust or inappropriate outcome. Additionally, when the combined income of both parents exceeds a certain threshold, there is a separate process for calculating the support amount.

If you believe you meet the requirements for getting a divorce in New York, you can initiate the process by filing either a Summons With Notice or a Summons and Complaint at the County Clerk’s Office. In some areas, this can be done online for added convenience. When you file, you'll typically need to pay a filing fee. However, if you're facing financial hardship, you can request a waiver for this fee. If your spouse and you have already reached a settlement agreement, you can file this agreement along with your divorce papers.

After you've filed the divorce papers, the next step is usually “serving” them on your spouse, which means delivering the papers to them in person. This must be done within 120 days of filing with the County Clerk. It's important to note that you cannot serve the papers yourself. Instead, you must have someone else deliver them for you. The person who serves the papers will need to complete an Affidavit of Service, which confirms that the papers were properly delivered according to legal requirements. Once your spouse has been served, they have 20 days to respond if they were served within New York State, or 30 days to respond if they were served outside the state.

If your divorce is uncontested, the judge will review the settlement agreement and the other documents you filed with the court. If the judge approves the agreement, they will sign a Judgment of Divorce, which will finalize your divorce. However, if your divorce is contested, meaning your spouse and you cannot agree on one or more issues, the case will move toward trial. During this time, you still have the opportunity to reach a settlement with your spouse at any point before the trial. If a settlement is reached, it can be submitted to the judge for approval.

If you are unable to reach a settlement, the judge will hear arguments and review evidence presented by your spouse and you. After considering all the information, the judge will make a final decision, which will be binding on both parties. This decision will be documented in the Judgment of Divorce, officially resolving the contested issues and finalizing the divorce.

In some states, there is a mandatory waiting period between filing for divorce and finalizing it, but New York does not have such a requirement. This means that, in New York, you might be able to dissolve your marriage more efficiently. However, the actual time it takes to finalize a divorce can vary. Factors such as the complexity of any disputes between your spouse and you, the extent of any negotiations, and the court's schedule can all influence the timeline.

It’s often challenging going through the process of dissolving your marriage. Fortunately, people pursuing a divorce in New York State may be able to consult certain resources or services to address their concerns.

The Supreme Court is the only court in New York State that can give you a divorce. (There are also Family Courts, but these are limited to other types of family law matters, such as child custody and support, adoption, guardianship, and paternity.) The website of the New York State Unified Court System, which includes the Supreme Court, provides numerous resources to people considering the dissolution of their marriage, such as:

• Free divorce forms
• A glossary of legal terms
• Information and forms for child support
• Information about divorce mediation as an alternative to going to court
• Links to bar associations and free or reduced-fee legal services

Courts in some areas of New York State have volunteer attorney programs, where you can get a limited amount of free legal advice. The New York State Unified Court System website also provides a list of courts that have put county-specific information about divorce online. If you don’t live in one of these counties, you can find the contact information of your local Supreme Court on the Unified Court System website and contact it directly to find out more.

Sometimes a spouse going through a divorce has experienced domestic violence by the other spouse. Domestic violence can take many forms, some more subtle than others. If you think that you may have been affected by domestic violence, you can get help from the New York State Office for the Prevention of Domestic Violence. This offers confidential conversations with advocates 24/7 in most languages. You can call, text, or use an online chat.

The New York State Coalition Against Domestic Violence also provides a New York State Domestic Violence Program Directory. You can select your county to find a list of residential and non-residential services, such as domestic violence shelters, safe homes and safe dwellings, phone hotlines, referral services, and counseling and advocacy. Meanwhile, DomesticShelters.org provides lists of programs that offer domestic violence services in 69 cities across New York State.

To find out more about the basics of getting a divorce, you can explore the Divorce Law Center in the Justia Legal Guides. We have also compiled 50-state surveys on key topics in this area. Check out the descriptions of New York law involving:

• Uncontested divorce
• Property division
• Maintenance (alimony)
• Child custody
• Child support

Justia also offers the Justia Ask A Lawyer platform, where you can post a specific question about your situation for attorneys in New York to answer. Be aware that using Justia Ask A Lawyer doesn’t create an attorney-client relationship with Justia or any attorney who responds to you. It’s not a substitute for getting your own lawyer.

Once you’re ready to do that, you should check out the listings of New York divorce lawyers on this page in the Justia Lawyer Directory. This can help you compare the options available to you and find some attorneys who may suit your needs.

You might be tempted to get a divorce without an attorney if your spouse and you are on friendly terms and seem to agree on all the issues without much debate. However, even in amicable situations, it is generally wise to consult with a lawyer. A lawyer can help ensure that you haven't overlooked any important details and can review the proposed settlement agreement with your interests in mind before you file it with the court. Additionally, an attorney can identify any potential issues that might prevent the judge from approving the agreement. This professional guidance can help you avoid pitfalls and ensure that the process goes as smoothly as possible.

If your spouse and you do not agree on all the terms of your divorce, it is crucial to have a lawyer on your side. (This is especially important if your spouse has already hired a lawyer, since you would otherwise be at a distinct disadvantage.) A lawyer can advocate for your position during negotiations, helping you pursue a favorable settlement, and they can assess how a judge might view certain issues if your case goes to court. They can also explain the implications of any terms proposed by your spouse, ensuring you fully understand what you would be agreeing to do. Having an attorney handle the negotiations and legal details can significantly reduce your stress during this emotionally challenging time.

When a divorce case proceeds to a trial or another hearing, having an attorney can make a significant difference. An experienced lawyer will know how to present evidence and arguments effectively, countering the points raised by your spouse and their attorney. They can articulate why the facts and the law support your position more skillfully than you probably could.

In many parts of New York State, there’s a wide selection of divorce lawyers, which can make it challenging to decide who is best suited to your needs. It's important to find an attorney with experience in the specific issues that are most important to you or that are likely to be contested in your divorce. For instance, if your spouse and you co-owned a business, you should consider working with a lawyer who has expertise in cases involving the valuation and division of a marital business.

It’s a good idea to look at reviews and testimonials from former clients. These can provide valuable insights into the attorney's personality, approach, and effectiveness. Additionally, some divorce lawyers have endorsements from their peers. If other attorneys hold them in high regard, it suggests that they may be respected by opposing counsel and judges, which can contribute to a smoother and more favorable process.

Before choosing an attorney, it's essential to check their disciplinary record with the New York State Bar Association. This organization sets the rules that attorneys in the state must follow when advising and representing clients. If an attorney has a history of frequent disciplinary issues, it might be best to look for someone else. You don't want major mistakes or unethical behavior by your lawyer to jeopardize your case. However, if an attorney has a minor infraction from a long time ago, it may not necessarily disqualify them from consideration. You can weigh this along with other factors.

It's a good idea to meet with a few different attorneys before deciding who is the best fit for you. During an initial consultation, you can provide the attorney with an overview of your situation and ask any questions you have. While the attorney considers whether they want to take on your case, you can assess whether they seem trustworthy and relatable. Having a strong working relationship with your attorney is critical. You need to feel confident in their abilities and comfortable discussing sensitive topics with them.

1. How do attorney fees work in divorce cases?

   Attorney fees in divorce cases typically use an hourly billing structure, meaning the attorney is paid based on the amount of time they spend on your case. However, some attorneys might charge flat fees for certain routine services, and others may offer flexible payment plans. If you're worried about cost, don't hesitate to ask about the different payment options available.

2. Can my child decide where they want to live?

   When it comes to child custody decisions, a court will take into account the opinion of your child if they are old enough to have a meaningful preference. However, it's important to understand that this is just one of many factors considered in evaluating what is in the child's best interests. Your child's preference will not be the sole basis for determining custody.

3. What happens if I don’t know where my spouse lives?

   If you are unable to locate your spouse, it can complicate the process of serving divorce papers, since you must comply with specific rules for service. In such cases, you will need to file an application for alternate service with the Supreme Court Clerk’s Office.

4. What’s the difference between a divorce and an annulment?

   A divorce ends a marriage that was legally valid, whereas an annulment is a legal declaration that the marriage was never valid to begin with. To obtain an annulment, you must prove specific grounds that differ from those required for a divorce. These grounds include bigamy, incurable insanity for five years, duress, and fraud, among others. It's also important to note that certain religions have their own separate procedures for annulment, which are distinct from the legal proceedings in court.

5. Is New York a 50/50 divorce state?

   No, the principle of equitable distribution in New York means that marital property is divided in a way that is fair. This doesn’t necessarily mean an even split, although often each spouse does get a relatively equal share.