Rockland County New York Divorce Attorney
As wonderful as marriage can be in many cases, it is also a risky proposition that can end with divorce. When two people get married in a church or in a courtroom on a particular day, there is, unfortunately, a good possibility that the marriage will not last. Statistically, 50% of first marriages and 65% of second marriages fail. Despite good intentions at the outset of a marital union, many people are set in their ways or as they mature, change-which often makes marriage difficult to maintain over time.
Hudson River Valley area New Yorkers contemplating divorce are encouraged to contact an experienced attorney at the law offices of McCormack & Phillips, Attorneys at Law. Before beginning the process, it is important to know what steps you can take to protect yourself, your personal property, and your children.
Basics of Divorce in New York
"Grounds" – The Causes of Action for Divorce
We inform people who are considering divorce that New York only became a no-fault state in October of 2010 when section 7 was added to Domestic Relations Law section 170 (DRL § 170). Before October of 2010, New York required a "fault" cause of action in order to obtain a divorce. This meant a "grounds" trial wherein the party seeking the divorce had to prove that they were entitled to the divorce by proving misconduct on the part of the other party. It was possible that after expending substantial sums of money on attorneys, valuation experts, forensic experts, appraisals, and other expenses, a divorce could be denied. Fortunately, the New York Legislature added a cause of action for divorce on the grounds of "irretrievable breakdown" of the marriage for at least six (6) or more months. This new cause of action is very popular in that there is really no defense, and hence, no trial on grounds. After spending the money, a divorce is guaranteed. So, while you must still include a cause action in your complaint for divorce, most people proceed on the grounds of "irretrievable breakdown". The advantages are undeniable. However, you may still include causes of action for cruel and inhuman treatment, adultery, non-voluntary separation [i.e. abandonment (a one year or more non-voluntary separation)] or "constructive abandonment" (which essentially means a refusal to have sexual relations for one or more years). However, with the exception of the irretrievable breakdown cause, you may have a "fault" trial which takes time and since matrimonial attorneys charge by the hour, time translates to additional counsel fees for both parties.
Once a marital relationship has broken down, practical considerations such as maintenance / alimony, division of assets, division of debts, custody of children, and child support take on great importance as individuals who once acted as a family unit prepare to go their separate ways. Frequently, the thought of giving away half of what you believed was your property, seeing children on a fixed schedule rather than everyday is difficult to accept and parties who initially had the best of intentions in keeping the divorce amicable and civilized find that there are significant disagreements.
Post Nuptial Agreements
When Divorce Plans Are Tentative, Postnuptial Agreements Can Be a Useful Tool
Sometimes, potential divorce clients come to us with the thought in mind that they and their spouses may eventually reconcile. In most cases, it is more likely that the parties want to stay together for myriad reasons, but it is frequently a case of “hope springs eternal”. While some postnuptial agreements last, most do not. It is generally a last ditch effort to save a failing marriage.
However, the parties can be fairer with each other when thinking that the marriage will continue and it generally limits legal fees should a divorce become inevitable. In such cases, we sometimes facilitate postnuptial agreements as a preliminary step to a potential divorce. Uncertainties about finances, or property can thus be resolved in the agreement as a couple concentrates on the human factors of seeking to salvage and rebuild a troubled marriage.
What About Legal Separation?
On the other hand, when clients inquire about a marital separation agreement, we typically advise them of the pitfalls of this approach. First of all, a Legal Separation is a cause of action that one sues on as one would sue for a judgment of divorce (DRL § 200). Unfortunately, there is no “no fault” ground for a legal separation so a trial on grounds will be necessary. If you choose to separate pursuant to a written separation agreement which is different than suing for a “legal separation”, the process of negotiating and agreeing on the terms of a legal separation pursuant to an agreement is identical to the negotiations for a divorce – yet the possibility exists that when one spouse later wishes to go from separation to divorce, the process may have to be repeated at great expense as one of the parties claims the agreement was unfair or unconscionable. A separation agreement can be attacked on various grounds if it is not converted to a divorce shortly. Therefore, this is a more costly and risky route than going directly to divorce once spouses acknowledge that remaining married is impossible.
Contact an experienced New York family law attorney to schedule an initial consultation regarding divorce and / or related matters such as child custody