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DIVORCE BASICS
By Marilyn A. Westlake, Esq.
Residency:
To file for a divorce in NYS you must meet the residency requirement.
You or your spouse must live in NY at the time the divorce papers
are filed. In addition you must meet one of the following requirements:
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1.
Both you and your spouse reside in NY at the start of the
divorce action and the grounds occurred in NY. Or -
2. Only one spouse resides in NY and that spouse has resided
there continuously for one year immediately preceding the
start of the divorce action and one of the following is
true: you were married in NY, resided in NY as husband and
wife sometime during the marriage, or the grounds occurred
in NY. Or -
3. Only one spouse lives in NY, but that spouse has lived
here continuously for 2 years immediately preceding the
start of the divorce action.
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| Grounds: |
| No-Fault:
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1.
Irretrievable breakdown: There has been an irretrievable breakdown
of the marital relationship for at least 6 months. (All issues
of custody, child and spousal support, and property distribution
must be resolved either by the parties [Ex. Separation Agreement],
or by the court before a Judgment of Divorce will be granted.)
2. Separation Agreement: Living separately for one year after
signing a legal Separation Agreement. |
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| Fault: |
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1.
Cruel and inhuman treatment: Behavior in the past 5 years
that either endangers or impairs the physical or mental health
and happiness of the other.
2. Abandonment: A spouse is absent from the marital home for
one year without the intent to return and without good cause.
Constructive abandonment is a refusal to engage in sexual
relations for one year.
3. Adultery: A spouse has intercourse with someone other than
the spouse.
4. Confinement in prison: Your spouse has been incarcerated
for 3 years. |
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Military
service:
If either spouse is in the military, you will need to obtain
further information on how military status affects your situation. |
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Litigation: Each spouse hires their own lawyer to negotiate for
him/her. Each spouse pays their attorney a retainer against which
the lawyer bills at an hourly rate. Only 3% of all divorce cases
are fully litigated. 97% of all divorce cases settle out of court.
Mediation: Mediation is a process used by some couples to decide
the terms of their separation agreement. The mediator is neutral
and meets with both spouses to help them to work out all the issues
in their separation: custody, parenting schedules, support, division
of assets and debts, etc. Mediators are paid by the hour for the
time that they spend with a couple. There is an additional payment
for writing the agreement. Of all possible processes, mediation
is usually the least expensive.
Collaborative Law: The parties and their attorneys
sign an agreement that they will not start a legal action or go
to court. Attorneys and their clients meet in a series of four-way
meetings to reach resolution of all the issues in the divorce. They
work together to share financial information, to discuss their children's
interests, and to make their decisions in an atmosphere of amicable
collective problem solving. The parties take the lead, assisted
by their attorneys who are there to provide legal information and
advice. The advantages of this process are similar to those of mediation.
A further advantage is that the parties benefit from the advice
of two attorneys simultaneously. The result is a legal Separation
Agreement which is incorporated into the judgement of divorce. The
disadvantages are the length of time to reach a settlement and the
cost.
In the event that the collaborative process breaks
down, the parties obtain different lawyers and go to court. Thus,
there is an incentive to have a successful outcome on the part of
the couple as well as their attorneys.
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