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Divorce & Family Law

In New York State, in order to obtain a divorce, a party must prove a “fault” ground (cruel and inhuman treatment, abandonment or constructive abandonment for a period of one or more years, adultery, or imprisonment for a period of three or more years), a “non-fault” ground (living separate and apart from his or her spouse for one or more years pursuant to either a separation agreement or judgment of separation), or for divorce actions commenced on or after October 12, 2010, the “no-fault” ground of there being an irretrievable breakdown in the marriage for a period of at least six months. The latter ground is “no-fault” because the issue is not who is the cause of the irretrievable breakdown, but only that there has been an irretrievable breakdown.

Just because there may be a ground or grounds for divorce, it does not necessarily mean that one should seek a divorce. There may be financial and/or other considerations as to why it might be in a person’s best interests not to seek or consent to a divorce.

A non-fault divorce (based upon a separation agreement or judgment of separation) is not automatic. After one year, one of the parties must still commence an action for divorce and must allege in the complaint that he or she has substantially complied with the terms of the separation agreement or judgment of separation. If there has not been substantial compliance with the agreement or judgment, the divorce can be challenged by the other spouse.

Divorce litigation, especially where there are highly charged and contested issues, is extremely expensive. With the assistance of experienced attorneys, however, parties can reach a comprehensive agreement without the need for litigation. Such an agreement can be structured either as a separation agreement where the parties wait at least a year before they can seek a divorce, or as a settlement agreement where the parties can immediately seek a divorce (assuming the parties have agreed upon a ground).

The prospective divorce litigant, like the would-be cliff diver, is well advised to become as knowledgeable as possible about the process (including ways of avoiding its many pitfalls) before making that leap.

Selecting the right attorney is an important part of the process. Before retaining an attorney, be sure to get answers to questions like: Does the attorney have the requisite knowledge, experience, and skills to handle a particular type of situation? Will the attorney provide an honest and realistic assessment of one’s case? Will the attorney be someone who listens to what the person’s expectations and goals are? Will the attorney have the patience to explain matters in a clear and comprehensible way? How is the attorney regarded among his or her peers? How is the attorney regarded by those he or she has served—is the attorney able to provide references from former clients? Has the attorney explained that there are several ways of resolving marital disputes, and addressed which of these ways might be the best approach in a particular situation?