Divorce Overview – The Basics

Matters of divorce, child custody and property division deserve attention from a family law attorney who knows how to protect your rights.

Division of Marital Property

If you are getting divorced in New York, it is important to understand the legal concepts behind division of the marital estate. All marital property that is the subject of a New York divorce is subject to equitable distribution.

People often assume that equitable distribution means an equal division, but it does not. The term equitable does not mean equal, it means just and fair. In limited cases, it may be necessary for a court to award one party to a divorce a greater share of property based on financial need and the financial needs of any minor children.

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If you are getting divorced in Dutchess County, New York, contact the experienced divorce and family law attorneys at Brooke, Brady and Schopfer, LLP. Call 845-454-2540 to contact our law office in Poughkeepsie, New York. We can help you understand your rights and answer any questions you may have about child support, spousal maintenance and the difference between separate property and marital property.

Our lawyers have considerable experience in a wide range of family law matters, including divorce, child custody and visitation, spousal support claims, domestic violence, paternity, protection of parental rights, grandparent’s rights and marital property division. To speak to a divorce and family law attorney about your legal rights, contact Brooke, Brady and Schopfer, LLP.

Contemplating divorce is difficult. Whether or not you are sure you want to end your marriage, it helps to learn the basics of divorce law. Should you conclude that divorce is necessary, it is important to seek the assistance of an experienced family law attorney at Brooke, Brady and Schopfer, LLP in Poughkeepsie, New York.

Grounds for divorce

A divorce is a judicial decree by which a valid marriage is dissolved. From a legal standpoint, the divorce process will divide the couple’s assets and debts; determine the future care and custody of their children; and give each person the legal right to marry someone else.

Every state has some form of “no-fault divorce,” but the laws vary a great deal from state to state. Generally, a divorce will be granted if one spouse states that the marriage has irretrievably broken down or the couple has irreconcilable differences. (Other residency and filing requirements must also be met.) This is different from the past, when only “fault divorces” were available. In a fault divorce, one spouse must allege a marital wrong like adultery or abuse in order to receive a divorce.

In some states, both fault and no-fault divorces are available. An experienced family law attorney can help you determine whether and how to pursue divorce.

Resolving issues during divorce

Before a divorce may be granted, five basic issues typically must be resolved. They are:

Alimony/spousal support
Property and debt division
Child custody
Visitation/parenting time
Child support

If the spouses can reach agreement on these issues, then the divorce is uncontested. If, however, the spouses cannot agree, the divorce is contested. The spouses may go to trial to resolve the issues. This usually means that a family court judge will make the final decisions. Alternatives to going to court include mediation, arbitration and collaborative divorce. Some courts may even order the spouses to attempt to resolve their differences through alternative dispute resolution:

Mediation. Mediation is an alternative to litigation that can be less expensive and less stressful for divorcing couples and their children. In the mediation process, the couple works with a trained mediator to reach agreement on contested issues.
Arbitration. Arbitration is more like court than mediation, but it can still be quicker and less expensive. Instead of using a judge to decide the outcome, the parties agree to use an arbitrator. Each spouse will have a separate attorney who will represent each spouse’s interests.
Collaborative divorce. Collaborative law is a relatively new divorce process that requires an up-front commitment to resolving disputes by negotiation, compromise and agreement. If either side decides to go to court, both attorneys are disqualified from representing their clients in the courtroom. The spouses find new attorneys and go to court.

Alimony, spousal support and maintenance

Alimony (also called spousal support or maintenance) is financial support that one spouse pays to another. The alimony can come in a lump sum, over a limited period of time or indefinitely. Because the laws vary from state to state, it is best to consult an attorney with questions about alimony. Factors that the court may consider in determining alimony include the length of the marriage and the ability of each spouse to earn a living.

Division of property in non-community property states

Courts in states that use the non-community property system typically make an equitable division of property between the divorcing spouses. Equitable means fair, rather than necessarily equal. The court makes the decision based on the circumstances of the divorce, the non-financial contributions to the marriage of each spouse and missed academic or career opportunities.

Speak to a divorce lawyer

Making the decision to end a marriage is difficult. Even so, it is in your best interest to approach the divorce process from a rational, businesslike perspective. Working with an experienced family law attorney from Brooke, Brady and Schopfer, LLP in Poughkeepsie, New York, will help you get through the process and begin your new life.

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

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