Frequently Asked Questions About Divorce
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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Q: What is a legal divorce?
A: A divorce is the dissolution of a marriage. After divorce, both parties are free to remarry. During typical divorce proceedings, the couple’s assets and debts will be divided and the care and custody of any children will be determined. Each state has its own distinct divorce laws.
Q: What are “fault divorce” and “no-fault divorce”?
A: In the past, divorce generally had only been granted on the basis of marital misconduct called “fault”: adultery, mental cruelty or another wrongful act. There were also defenses to these faults. In these divorces, the spouse at fault often received a smaller portion of the marital settlement. In a no-fault divorce, the parties merely need to state that the marriage has broken down irretrievably or that the couple has irreconcilable differences. Every state has some form of no-fault divorce, but the particulars of the laws can differ markedly from state to state.
Q: What are the requirements for filing a petition for divorce?
A: The requirements for filing a petition for divorce vary for each state. Each state has residency and domicile requirements. That means one of the parties must have been a resident or domiciliary of the state for a specified period of time prior to the filing of the petition. Some states have a “cooling off” period, during which the parties may not commence divorce proceedings (or serve divorce papers) for a specified period of time after the petition has been filed.
Q: What is a legal separation?
A: A separation occurs when a couple voluntarily lives apart. Depending on the state, either one or both parties must consent. A judicial separation is a decree by the court that the parties are living separately; this agreement may contain specifics on child custody, child support, spousal maintenance and division of property. A separation is not a divorce, so the couple remains legally married.
Q: May the provisions in a divorce decree be changed afterwards?
A: Post-decree modification usually does not occur unless there is a provision in the separation agreement to do so; unless one of the parties commits fraud, wields undue influence or makes a misrepresentation; or to correct mutual mistakes. Child support may be modified based upon a significant change in circumstances.
Q: How is property divided in a divorce?
A: Courts divide property between divorcing spouses using two different concepts, depending on the state: community property and non-community property. Community property states dictate that each spouse owns an undivided one-half interest in any property acquired during the marriage. Non-community property states, however, take an equitable (fair rather than equal) approach. Typically, property that was owned by one party before the marriage, or given to one spouse as an inheritance or gift at any time, is non-marital property (and not subject to division). Other property that was acquired during the marriage is subject to division. The laws in each state can vary greatly, so it is important to consult an attorney.
Q: What is the difference between maintenance and alimony?
A: Alimony, maintenance and spousal support refer to the same thing: one spouse providing court-ordered funds to the other. This happens while the couple is legally separated, divorcing and/or divorced. Each state has its preferred method of determining how much should be paid, to whom and for how long. Courts typically consider the standard of living during the marriage, the current circumstances of each spouse and the ability of each spouse to provide for his or her needs. Alimony may be awarded as a lump sum, for a limited period or for an indefinite period.
Q: Do I need to hire an attorney?
A: It is not mandatory that you hire an attorney; you may represent yourself. You could, however, be putting yourself at a serious disadvantage. Unless you and your spouse have no marital assets, children or unsettled issues, the divorce can become complex very quickly. An experienced family law attorney who knows the laws of your state can be of great help during a divorce.
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