Ending your marriage might be one of the hardest things you do during your lifetime. Making the decision to divorce can be emotional and stressful — and you likely have many questions about the legal process. While every case is different, it’s important to have basic knowledge regarding divorce and what to expect.
Here are ten of the most frequently asked divorce questions:
Divorce simply refers to the legal process of ending a marriage. A divorce is officially commenced by filing a summons and complaint in court and serving it on your spouse. Throughout the process, the parties will exchange information to learn about each other’s financial situation. They will then work together with their attorneys, unless the parties are representing themselves, to determine the issues that must be decided in order for a judge to sign the final divorce decree — including property division, child custody, child support, and spousal support matters. If the spouses cannot reach a settlement, their case will proceed to trial and a judge will decide the outcome.
One of the most common divorce questions that arises is, “Do I have to go to court?” Divorce doesn’t always need to go through the litigation process. An amicable resolution can be reached through out-of-court negotiations. Reaching a settlement with your spouse is more cost-effective than going through the litigation process. Reaching an agreement with your spouse also ensures you remain in control of the outcome of your divorce case, rather than let a judge who does not you make the decisions, and often in a way you do not like.
Divorces can be either contested or uncontested. When a divorce is uncontested, it means that the spouses agree on all the terms of the divorce and the major issues that must be decided. An uncontested divorce is always less costly and time-consuming than a litigated divorce. But if spouses cannot reach an agreement regarding any of the issues, the matter will be considered contested.
Every divorce case is unique. While a case can take anywhere from a few weeks to several months or even years to resolve, it’s important to understand that there are many variables that determine the amount of time a matter will take. The timeline for the divorce process can vary based on:
When parties are able to work together, the divorce process goes much more smoothly — and the amount of time it takes to finalize a divorce can be significantly reduced.
Many people have divorce questions regarding how property and assets will be divided. New York is an equitable distribution state. This means that you and your spouse should both be able to walk away from the marriage with a fair share of marital assets. Although it does not mean that all shared assets are subject to a 50/50 split, the value of the assets each party receives in the end is often about the same. Any assets owned by either spouse prior to the marriage are deemed separate property and not subject to division, subject to limited exceptions.
Under New York’s equitable distribution laws, both spouses are generally responsible for debts incurred during the marriage — regardless of who accrued them. This can include credit cards and any other debts. Any debts incurred before the marriage are typically considered separate property and not subject to division.
One of the most frequently asked divorce questions is, “who will have custody of the children?” New York prefers to grant joint child custody. This would give each parent equal authority in decision making, access to the children, and help ensure the children will have a meaningful relationship with each parent. Many judges also prefer shared residential placement, meaning both parents will have equal time with the children. The parties can create their own parenting time schedule — but if they cannot agree on the matter, a judge would decide custody based on the best interests of the children. If joint custody would not serve the best interests of the child, awarding sole custody to one parent with visitation to the other may be possible. Sole custody means one parent makes all major decisions regarding the child, but it still does not give that parent the right to make decisions which would restrict the other parent’s ordered time with the child. For instance, sole custody does not mean the parent has the right to relocate if it would impact the visiting parent’s time with the children.
The parent who does not have primary physical custody is usually the one who will have to make child support payments. In cases of shared placement, the parent with higher income will pay child support. The amount this individual must pay will depend on:
An experienced attorney can help you figure out how much child support you may owe or receive.
A spouse who earns less than the other may be able to request spousal support in divorce. However, it is not automatically granted. In determining whether it should be awarded, a court will consider the standard of living established during the marriage, the length of the marriage, the disparity in income between spouses, potential future earnings, and a number of other factors. In New York State, a statutory formula is used to determine the amount of spousal support paid, and your attorney can tell you the potential amount to be paid in your case. Spouses can also decide the issue of support between themselves by entering into a prenuptial agreement before marriage, a postnuptial agreement, or by settling the issue during the divorce process.
Divorce can be emotionally draining and legally overwhelming. An experienced divorce attorney can answer your specific divorce questions, help guide you through the divorce process, and ensure your rights are protected. They can prepare the necessary legal documents for your case, engage in discovery (gathering of necessary financial evidence), provide you with crucial legal advice throughout the process, and negotiate a settlement with your spouse. By having a skillful divorce attorney by your side, you can avoid the potential for costly pitfalls that could impact you down the road.
Divorce is always difficult. However, having the right divorce attorney by your side can make all the difference. At Duke Law Firm, P.C., we offer our clients trusted representation for a wide variety of divorce and family law matters and are committed to guiding them every step of the way.
Offering tailored legal services and compassionate counsel, we welcome you to contact us today to schedule a consultation to learn how we can help.
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