Divorce

​New York is now considered a “no fault” state, which means that a person seeking divorce does not have to prove that the other spouse was responsible for the breakdown of the marriage.  The “no-fault” grounds are called “irretrievable breakdown in relationship,” and are sufficient grounds for obtaining a divorce. 

There are seven grounds that may be claimed for divorce:
(1) Cruel and inhuman treatment.
(2) Abandonment of the plaintiff by the defendant for a period of one or more years.
(3) Confinement of the defendant in prison for a period of three or more consecutive years after the marriage.
(4) Commission of an act of adultery.
(5) The husband and wife have lived apart pursuant to a decree or judgment of separation for a period of one or more years.
(6) The husband and wife have lived separate and apart pursuant to a written agreement of separation.
(7) Irretrievable breakdown in relationship for a least six months. 

Filing for Divorce: Residency Requirements
To file for a divorce in New York you must satisfy one of the following residency requirements:
(1) The marriage ceremony was performed in New York State and either spouse was a resident of the state at the time of the commencement of the action and resided continuously in this state for one year immediately before the action began; or,
(2) The couple lived as husband and wife in this state and either one is a resident and resided in this state for a continuous period of one year immediately prior to the commencement of the action; or,
(3) The grounds for divorce occurred in this state and either party is a resident and lived in this state for a continuous period of one year prior to commencement of the action; or,
(4) The grounds for divorce occurred in this state and both parties are New York residents at the time the action is commenced; or,
(5) If you and your spouse were married outside of New York and you never lived together as husband and wife in this state and the grounds for divorce did not occur in this state -- either you or your spouse must presently be a resident of New York State and have resided continuously in the state for at least two years prior to bringing this case.

 

Filing for Divorce: Automatic Orders
Upon the filing of the divorce the filing spouse (plaintiff) is bound by automatic restraining orders that are served with the divorce summons.  Once the summons is served on the other spouse (defendant) both parties are bound by the automatic orders.  The automatic orders provide as follows:
(1) Neither party shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of, without the consent of the other party in writing, or by order of the court, any property (including, but not limited to, real estate, personal property, cash accounts, stocks, mutual fuuds, bank accounts, cars aod boats) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney's fees in connection with this action.
(2) Neither party shall transfer, encumber, assign, remove, withdraw or in any way dispose of any tax deferred funds, stocks or other assets held in any individual retirement accounts, 401k accounts, profit sharing plans, Keogh accounts, or any other pension or retirement account, and the parties shall further refrain from applying for or requesting the payment of retirement benefits or annuity payments of any kind, without the consent of the other party in writing, or upon further order of the court.
(3) Neither party shall incur unreasonable debts hereafter, including, but not limited to further borrowing against any credit line secured by the family residence, further encumbrancing any assets, or unreasonably using credit cards or cash advances against credit cards, except in the usual course of business or for customary or usual household expenses, or for reasonable attorney's fees in connection with this action.
(4) Neither party shall cause the other party or the children of the marriage to be removed from any existing medical, hospital and dental insurance coverage, and each party shall maintain the existing medical, ,hospital and dental insurance coverage in full force and effect.
(5) Neither party shall change the beneficiaries of any existing life insurance policies, and each party shall maintain the existing life insurance, automobile insurance, homeowners and renters insurance policies in full force and effect.

 

Filing for Divorce: Pendente Lite Period
The time between filing of the divorce and entry of a final judgment of divorce is called the “pendente lite” period.  During this period, before a divorce is finalized, the Court may grant temporary relief, including orders concerning spousal support; child custody and child support; a restraining order against abuse, if necessary; exclusive possession of the marital residence; and an order that one spouse pay the other’s attorney’s fees while the divorce is pending.

 

Financial Disclosure
In an action for Divorce each party must make complete disclosure of his or her income, expenses, assets and liabilities.  Each party must prepare a “net worth statement” signed under oath. Upon demand, each party may be required to following types of documents:
(1) all federal and state income tax returns filed within the last three years, including personal returns and returns filed on behalf of any partnership or closely-held corporation of which a party is a partner or shareholder;
(2) IRS forms W-2, 1099 and K-1 within the last three years including those for the past year if the income tax returns for that year have not been prepared;
(3) copies of all pay stubs or other evidence of income for the current year and the last pay stub from the past year;
(4) statements for all accounts maintained with any financial institution, including banks, brokers and financial managers, for the past 24 months;
(5) the most recent statement showing any interest in any Keogh, IRA, profit sharing plan, deferred compensation plan, pension plan, or retirement account;
(6) the most recent statement regarding any insurance on the life of any party;
(7) a summary furnished by the employer of the party's medical insurance policy, coverage, cost of coverage, spousal benefits, and COBRA costs following dissolution;
(8) any written appraisal concerning any asset owned by either party.
Additional discovery tools which may be utilized in a divorce include taking depositions, serving discovery demands called “Interrogatories” and “Requests for Production of Documents." In some cases it may be necessary to hire accountants, actuaries or other experts to discover and analyze corporate books and records.  Hiring experts may be necessary in cases where one party owns his/her own business or there is a concern that the party is hiding assets.  In such situations, the discovery process may become expensive.

Law Office of Joseph S. Hubicki