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Can I Get a Divorce in New York?

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Are you considering filing for a divorce? If so, there are guidelines that you must be aware of and many factors that must be considered in doing so.

To file for divorce in New York you must meet one of the following eligibility requirements:

(1) You or your spouse have been living in New York state for at least two years before the divorce is commenced;

(2) You or your spouse have been living in New York State for at least one year before the divorce action is commence and (a) you got married in New York State, or (b) you lived in New York State as a married couple, or (c) the grounds for divorce (see below) occurred in New York State;

(3) both you and your spouse are residents of New York State on the date the divorce action is commenced and the grounds for divorce arose in New York State. 

Also to file for divorce, you must allege a “ground” for divorce:

 There are seven (7) grounds for divorce in New York. The most popular ground in divorce mediation is the “irretrievable breakdown of the marriage for at least six months”. This is generally referred to as a “no fault divorce”. This ground makes it possible for couples to get a divorce without having to provide “proof” of the breakdown of the marriage provided that the parties both affirm that there has been irreconcilable differences between the parties and the marriage has irretrievably broken down for no less than six months. Parties filing for divorce under this ground, will also enter into an agreement setting forth a settlement of all economic issues, distribution of all property, custody and support issues.

Other grounds for divorce in New York are: cruel and inhuman treatment, abandonment, imprisonment, adultery, divorce after living under a legal separation agreement for one year, and divorce after judgment of legal separation. Use the following link https://www.nycourts.gov/courthelp/family/divorceRequirements.shtml , to find out more about the specific grounds for divorce.

Determining if you are eligible for divorce in New York is just the first step in the divorce process. Take that first step to the new you by clicking here to schedule a consultation and to learn what other factors must be considered and resolved in order for you to obtain your goal.

Divorce Mediation – What are “Add-on” Expenses and How Are They Allocated?

Allowance alimony getting bonus paid pay raise

Mediation allows the parties to come up with creative alternatives. Some parties will split the add-on expenses equally; some will decide to pay for the expenses in proportion to their income; some may choose to elect one person to pay 100% of all or some of the add-on expenses so that they are not constantly requesting reimbursement for expenses incurred and/or providing proof of payment to the other person. There are many variations for payment that can be considered and agreed upon by the parties during the mediation process.

The following is a list of Add-on Expenses that should be considered in your divorce mediation:

(a) Unreimbursed medical expenses;

(b) Extracurricular activities including, without limitation, any equipment, gear, paraphernalia, etc. for such activity [ex. Sports, music, art];

(c) College, including without limitation, tuition, room and board, and spending money;

(d) Braces;

(e) Glasses/ Contacts;

(f)  Summer Camp [day camp, sleep away camp, travel programs]

(g) Cell Phone and future cell phone bills;

(h) Car and Car Insurance, including cost to obtain license and driver’s education classes;

(i)  Babysitting/ After School Care/ Tutoring/ Private school;

(j)  Birthday Parties/ Communions/ Bar – Bat Mitzvahs/ Sweet Sixteen’s/ Prom/ Weddings

In your mediation, each of the above items, among others, should be discussed in determining how payment for each “Add-on” expense will be allocated and what may work best for the parties. Maybe it is simpler for one person to pay for braces and glasses and the other to pay for childcare. Maybe it works best for the parties to lower the amount of child support one person will pay in exchange for that same person paying 100% of the add-on expenses. One person may want to negotiate keeping 100% of their pension in exchange for paying 100% of the add-on expenses for the children.

During the mediation process, it is helpful to consider all extra expenses that may arise in the future and how they may be apportioned to the parties. Once an agreement is reached in the mediation, it should then be subscribed to writing so that there is clarity for the future.

Mediation offers the parties the benefit of discussing and finding creative solutions that work for their situation, rather than a formulaic approach decided by a Court.

Considering a Divorce? Answer these Questions to Determine if Mediation is an Option For You

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There are many questions to consider before deciding to move forward with divorce mediation. Review the below non-exclusive list of questions to help you decide whether mediation is the right approach for you:

1.  Do you and your spouse both want to get the divorce?

2.  Are you and your spouse able to resolve your differences, including be in the same room and make joint decisions?

3.  Do you want to have control over the process?

4.  Are you interested in creative alternatives?

5.  Are you and your spouse interested in making the divorce process easier on yourself and your children?

6.  Are you and your spouse willing to putting the needs of your children before your own needs?

7.  Are you and your spouse interested in resolving your divorce in a cost-effective manner?

8.  Are you and your spouse prepared to disclose all of your relevant financial data?

9.  Can you and your spouse come to agreement on issues?

10. Are you and your spouse willing to work together cooperatively to reach an agreement?

 

If you answered yes to the above questions, you may be a candidate for mediation.

 

1.  Are you a victim of domestic violence?

2.  Are there orders of protection against you or your spouse?

3.  Do you feel that your spouse will prevent you from speaking or over-power you?

4.  Are you afraid of your spouse?

5.  Are you looking for retribution?

 

If you answered yes to any of the above questions, mediation is not the right option for you.

Put Your Child First this Holiday – Create a Proper Parenting Plan that Takes Into Account Your Child’s Best Interests

Keep Holiday Drama to a Minimum This Year

Child-like illustration of two parents tugging a child who is crying into a large pool of tears

For most people, the holidays are a time of happiness and family. But for those who are divorced or separated or contemplating a divorce, the holiday season may present many challenges. It is important to keep the holiday drama to a minimum and put the child’s best interests first this holiday season.For many children of split homes, the holidays may mean (a) splitting their time between their parents; (b) being in the midst of their parent’s arguments regarding scheduling of time with the child; (c) stressing about the interaction between the parents as they meet to drop off/pick up the child; (d) missing time with other family members because it is time to go with the other parent; (e) leaving the fun at one house and possibly missing the fun at the other house; (f) not being involved in traditions; and (g) simply being sad that the child cannot spend the holidays with both parents simultaneously.

Despite the relationship between you and your spouse/former spouse, once you have children, their interests are to come first. The child should not feel anxiety or stress because a holiday is approaching and they should not be aware of the parents anxiety or stress. Parents should consider what would make the child happy, not what will anger the other parent most. Remember, that these are lifelong memories that are being built and your child may not remember all of the details of the holidays, but will remember how he/she felt and whether his/her parent made them feel that way.

While your relationship and divorce may be contentious, try to set that aside and focus on your child. Is it best for the child to alternate years with each parent, spending the time between Christmas and New Year’s with one parent one year and the other parent the following year? Or is it better to split the holidays so that the child spends half the holiday week with one parent and half with the other? Or would it be better for each parent to take certain holidays to share with the child rather than shuffling the child mid-day? Would your child be happier to share the day of the holiday, with one parent having the child in the morning and the other having the child in the evening? Are you able to both be in the same place at the same time with the child on the holiday?

There are many factors to consider in creating a parenting plan. The primary factor being what is best for the child. Schedules must be coordinated and worked out, but creating experiences with the child that the child will remember and look back on happily, is the ultimate goal.

So as the holidays approach, do not let your feelings for your former spouse cloud your judgment. Think of what will make your child(ren) happiest.

Donath Law, LLC can assist you in preparing and modifying your parenting plan to put your child’s interests first. and allow you to be the parent you want to be this holiday and for all future holidays.

Mediation – A Helpful Tool in Resolving Divorces and Workplace Disputes

Mediation is a non-binding, voluntary process where both parties must be interested in achieving resolution. It can be a helpful tool in conflict resolution, both in the workplace and for spouses looking to divorce or separate. However, mediation is not the proper forum for everyone.

Mediation is successful if the parties want to be a part of the process and are serious about resolving their differences. In mediation, the parties meet with a mediator. The mediator is there to facilitate resolution. The mediator cannot force resolution, but will help the parties come up with alternatives and options with a goal of reaching agreement.

Divorce mediation is the preferred choice for couples facing separation and/or divorce because it is a more amicable, faster and cheaper process than litigation. It offers couples more control over the process and the decision-making, allowing for more flexibility and cooperation in determining, among others: Equitable Distribution of Assets and Property, Custody, Child Support, and Maintenance. Divorce mediation allows couples to structure their divorce differently than if they went to court. The parties are made aware of the guidelines for child support and spousal maintenance, but have the option to opt out of these guidelines and decide together the amount of these payments. The parties can work together to determine a parenting plan and custody arrangements that best suits their child(ren) and their life. Aside from the flexibility in structuring the divorce and distribution of assets and liabilities, the cost of divorce is a fraction of the cost as compared to a contested litigation.

Mediation can also be a helpful tool in workplace disputes. Prior to commencing litigation, the parties should consider mediation, as it is generally faster and the parties, as stated above, have more control over the process. Some employers have policies requiring mediation prior to litigation or arbitration. A good mediator, is aware of the law and attempts to settle the underlying issues that have arisen. The parties will make the mediator aware of the circumstances, the efforts, if any, that have been made to resolve the situation and the proposed resolution. The mediator will work to try and facilitate resolution and at the same time provide his/her insight into the strengths and weaknesses of the claims.

Mediation is generally not successful if the parties are not both on board. If the parties are not truly interested in resolving the situation, the mediation will most likely fail. If mediation is being used as a tool to humiliate, intimidate or deplete a parties’ assets, the mediation should not move forward or should be halted quickly. In situations where there are orders of protection or claims of domestic violence, mediation is not the proper forum for divorce. Parties should not move forward with mediation if one party is overbearing or controlling.

In all situations, should resolution be reached the agreed upon terms should be subscribed to writing and provided to the parties for both to have reviewed by an attorney and signed. A copy of the agreement should be kept by both parties so that they are both aware of their obligations.

In a truly success mediation, the parties are slightly unhappy but happy that the matter has been resolved. Why? Because mediation is a compromise by the parties. One party agrees to give in to one item in order to obtain another, or one party paid more money than they wanted to the other party but the other party is disappointed because he/she wanted more than what was to be received. Overall, the parties are satisfied with the outcome because the issues have been addressed and settled. Both parties have had the opportunity to speak, be heard, and stand up for what he/she believes and wants.

Legal Separation v. Divorce: Find Out the Difference

Are you unhappy in your marriage? Is marriage not what you expected or is it no longer working for you and your spouse? Don’t worry, you have options. It is difficult to make the decision to end a marriage and it is a decision that should not be taken lightly. It is for this reason, among others, that before taking that drastic step, many couples decide to first experience life apart through a legal separation.

Legal separation provides couples an opportunity to live apart from each other and at the same time sets out the rights and responsibilities for each spouse. This includes, items such as child custody, child support, spousal support/maintenance and property division. A legal separation is a legally binding document that a married couple enters into to decide the terms of their separation without ending their marriage. Once entered into, the couple is still legally married but is also considered separate in the eyes of the law.

A legal separation can be accomplished through a written agreement by the parties or by going to court and requesting a judgment of separation.

The main difference between legal separation and divorce is that a legal separation does not actually dissolve the marriage and the parties are still considered legally married and therefore cannot get remarried.

Legal separation offers advantages to the couple. Specifically:

(1)   It allows the couple to see how their current problems and relationship is affected by living apart so that they can determine if they want to reconcile or they want to officially end their marriage and file for divorce. If they choose to reconcile, there is no need to remarry.

(2)   It is generally a more amicable process and may have less of a tumultuous effect on the couple’s child(ren).

(3)   A legal separation can be highly advantageous in protecting both spouses’ entitlement to benefits. Since the couple is still married, the couple maintains their married status and benefits like health plan coverage that would likely terminate upon divorce generally will continue. Spouses who are married for at least ten years are generally eligible for certain Social Security Benefits and for benefits under the Uniformed Services Former Spouse Protection Act. There may also be tax benefits.

(4)   Some couples choose legal separation as an alternative to divorce for religious and/or moral reasons.

(5)   While divorce can be an amicable process, a majority of divorce proceedings are long, drawn out, expensive litigations. Divorce battles, more often than legal separation cases, can be hostile. This can rack up large attorneys’ fees and court costs.

(6)   Obtaining a legal separation generally does not disrupt life and work the way a divorce battle can. Both spouses can continue to function normally in their daily lives without the stress, emotional turmoil and time requirements that can come with drawn-out divorce cases.

(7)   Another benefit is that once a legal separation is complete, the legal work involved in coming to an agreement can be used during the divorce process, since the rights and responsibilities of the parties during the separation can be converted into post-divorce obligations.

While legal separation offers many advantages, divorce may be the only option for some couples. Ultimately the decision of legal separation versus divorce comes down to the circumstances involved in the marriage. A legal separation will still keep the couple married, and if a spouse wants to marry someone else they have to file for divorce.