Divorce
Garden City Law Firm

What is a divorce?
Divorce is the final termination of a marital union, cancelling the legal duties and responsibilities of the marriage and dissolving the bonds of matrimony between the parties. The legal process for divorce may also involve issues of spousal support, child custody, visitation, child support, distribution of property and division of debt.

Different Ways to Get Divorced

1. Litigation

An action for divorce is commenced by filing a Summons with Notice without a Complaint, and generally a Request for Judicial Intervention. There are normally several court appearances required, starting with the Preliminary Conference, at which time the Judge first becomes familiar with the parties and the facts and circumstances unique to the case. Often, some issues are resolved when the parties and their respective attorneys meet at the Preliminary Conference by entering into a pendente lite Stipulation, which is a temporary agreement in effect while the action is pending before the court. A party requiring immediate relief may bring a pendente lite motion for the court to determine issues such exclusive use and occupancy of the marital residence, temporary custody, child support and maintenance.

At the Preliminary Conference, the discovery phase of the case will be scheduled in order to guide the parties through the comprehensive disclosure of all financial aspects of their matter. The law of New York requires the full financial disclosure of all assets, liabilities, income and expenses through various discovery devices, from notices for discovery and inspection, depositions, interrogatories, subpoenas and the valuation and appraisal of assets such as real estate and businesses. Sometimes it is necessary and useful to retain the services of experts such as an attorney for the child (law guardian), forensic accountant, forensic psychologist, and appraisers.

The court will continue to be involved in the process at subsequent status, compliance and pre-trial conferences, guiding the matter along as the parties complete discovery and deal with other issues while the matter is pending. Frequently, motion practice is necessary to protect a client’s rights and/or to compel another party to meet their obligations. Our firm has prepared as well as defended against motions regarding a multitude of issues. We take a proactive approach to motion practice while balancing the likelihood of success and the necessity of the application with the costs involved and our ability to negotiate an amicable resolution of the issue.

If the parties are unable to resolve any of the issues outstanding in the action, the court will set the matter down for a trial on those issues. At the trial, both parties, and potentially third parties with knowledge of the matter or experts retained to explain certain aspects of the case, will be called to testify, and documentary and other evidence, such as video or audio tapes, may be introduced to prove a party’s claim. At the conclusion of the trial, the Judge will issue a decision, which, subject to either party’s right to appeal the order within 30 days to the Appellate Division, is binding on the parties.

Mary Ann Aiello has been practicing in field of matrimonial and family law for over 30 years. She has successfully litigated many cases involving a wide range of issues such as custody, equitable distribution, child support, maintenance, and family offenses and she has successfully tried numerous cases, obtaining a beneficial final decision for her client. Additionally, she has appellate practice experience in the Second Department, State of New York.

2. Settlement/Amicable Divorce

A settlement or amicable divorce is a more civil approach to negotiating the contested issues in a divorce. Both parties typically hire their own attorneys, however, the attitudes of the parties and the attorneys remain composed and amicable. Our firm has vast experience working hard to resolve a client’s divorce case as amicably as possible by advocating their interests throughout the negotiation process. Both parties may still obtain enough information about the issues in the divorce to make an informed decision and both parties can hire experts to assist them with their decision making or advocating their position.

In amicable negotiations, the parties exchange financial documents, as well as settlement proposals through their respective attorneys. Thereafter, a four-way meeting is typically held wherein the parties and their respective attorneys discuss the issues as well as ways for the parties to settle their matter. If the parties are able to reach an agreement, then one of the attorneys prepares a Stipulation of Settlement or a Separation Agreement to be submitted to the Court. Our firm has negotiated, resolved and prepared innumerable Separation Agreements and Stipulation of Settlements.

3. Mediation

What is mediation?
Mediation is an alternative to divorce litigation.

In a divorce mediation session, an attorney-mediator facilitates the discussion between the two parties by assisting with the communication and providing information and suggestions to help resolve any differences. With the guidance of our firm’s experience, a peaceful resolution can be achieved while maintaining your confidence that the process will result in a fair and equitable outcome.

At the end of the mediation process, usually the separating parties have developed a tailored divorce agreement that can be submitted to the court. Mediation can be less costly, both financially and emotionally, than litigation.

4. Collaborative Law

What is Collaborative Law?
Collaborative Law (also called Collaborative Practice, Collaborative Divorce, and Collaborative Family Law) is a family/matrimonial law process enabling couples who have decided to separate or end their marriage to work with their lawyers and other family professionals in order achieve a settlement that best meets the specific needs of both parties and their children without the underlying threat of contested litigation. The collaborative process is similar to traditional mediation, but requires the attorneys to be properly trained and certified. Additionally, participation in a collaborative matter requires the parties and attorneys to abide by certain formalities to make the process more effective, for example, documenting the minutes of what was discussed at each conference.

The voluntary process is initiated when the couple signs a specific retainer binding each other to the process and disqualifying their respective lawyer's right to represent either one in any future family related litigation (other than an uncontested divorce).

This approach to conflict resolution was created in 1990 by a Minnesota family lawyer Stuart Webb, who saw that traditional litigation was not always helpful to parties and their families, and often was damaging. Since 1990, the Collaborative Law movement has spread rapidly to most of the United States, Europe, Canada and Australia. Per the International Academy of Collaborative Professionals ("IACP"), more than 22,000 lawyers have been trained in Collaborative Law worldwide, with collaborative practitioners in at least 46 states. In some localities, Collaborative Law has become the predominant method for resolving divorce, cohabitation and other family disputes.

In a Collaborative Law case, the parties strive to reach a mutually acceptable, interest-based settlement through a series of meetings, sometimes called joint sessions, between the two parties and their lawyers, and sometimes other neutral experts. Ultimately, each party will decide, by themselves, whether the terms of the agreement are "fair" to them. The primary focus of the four-way meetings or joint sessions is to identify the priorities, goals, needs and interests of the parties, to help them reach a settlement consistent with their priorities, goals, needs, and interests. The parties make their own decisions based on their own standards.

Mary Ann Aiello has been trained as a mediator and in the collaborative law practice. She is a member of the New York Association of Collaborative Professionals. If you are interested in obtaining a divorce through the collaborative law process, please contact our office and we will be happy to arrange a consultation.

What are the grounds for Divorce?

In the State of New York, there are currently 7 different grounds for obtaining a divorce including the newly enacted “Irreconcilable Differences.”

1. No Fault Divorce
Irretrievably Broken/Irreconcilable Differences

Effective October 12, 2010, New York State adopted legislation enabling a party to obtain a “no fault” divorce. In order to obtain a divorce under this new ground, a party must simply state under oath that the marriage has been irretrievably broken for a period of at least six months. This judgment can only be granted after the following ancillary issues have been resolved: the equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and expert fees and expenses, and custody and visitation with the infant children of the marriage. A judgment of divorce under this subdivision could not be issued until all these issues are resolved.

2. Cruel and Inhuman Treatment

A party may obtain a divorce based on cruel and inhuman treatment if they can sufficiently allege that the treatment they were subjected to by their spouse was such that it endangers their physical or mental well being and renders it unsafe or improper for the plaintiff to cohabit with the defendant.

There is no bright line rule for deciding what conduct constitutes cruel and inhuman treatment and a court typically decides based on the totality of the circumstances of each particular case.

3. Abandonment

The abandonment of the plaintiff by the defendant for a period of one or more years can occur in several ways, two of which are most common.

Actual abandonment is the unjustified leaving of the marital home by one of the parties. If one of the parties leaves the marital home with the consent of the other party, no abandonment has occurred. If the party is a victim of domestic violence, they are not precluded from seeking a divorce, because under such circumstances leaving the marital home is justified.

Constructive abandonment is another form of abandonment, which is the unjustified refusal to engage in sexual relations with the other party. However, if both parties consent to not engage in sexual relations, there is no constructive abandonment by either party.

At the time of the commencement of the action, the abandonment must have continued for at least one full year.

4. Adultery

A single act of adultery may form a sufficient basis as a ground for divorce. However, adultery is subject to several defenses, including connivance (procurement), condonation (forgiveness) and recrimination (both parties guilty of adultery).

5. The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.

6. Conversion Divorce (Two Types)

Either the husband and wife have lived apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment, and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree or judgment. OR

The husband and wife have lived separate and apart pursuant to a written agreement of separation for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all of the terms and conditions of such agreement. Such agreement shall be filed in the office of the clerk of the county where either party resides.

Your Rights and Duties During a Divorce

Preserving the Marital Assets
A party commences a divorce action by the filing of either a Summons with Notice or a Summons with a Complaint. Both documents are accompanied by two notice provisions, which are binding upon the party who filed the Summons simultaneously with the filing and on the other spouse when they are served with the Summons.

The first notice is entitled Notice of Continuation of Health Care Coverage, which states that once a judgment of divorce is signed both you and your spouse may or may not be eligible for coverage under each other’s health insurance plans depending upon the terms of the plans

The second notice is entitled Automatic Orders, which in summary provides
1. Neither spouse is to transfer, encumber, assign, remove, withdraw or in any way dispose of any marital assets including but not limited to; retirement accounts, stocks, money markets, real estate, personal property, mutual funds, cash accounts, bank accounts, cars, and boats.
2. Neither party shall incur any unreasonable debts.
3. Neither party shall remove the other party or the children from any existing medical, dental or health insurance, and each party shall maintain the existing medical, dental or health insurance.
4. Neither party shall change the beneficiaries of a life insurance policy and each party shall maintain the existing life, automobile, homeowners’ and renters insurance policies.

Maintaining the Family’s Status Quo

During a divorce proceeding, the parties are expected to at least maintain, to a certain degree, the pre-separation standard of living. However, this is not a hard line rule, and each case is decided upon the totality of the circumstances.

If the parties cannot reach an agreement either amongst themselves or with the assistance of their attorneys as to the adequate amount that each spouse needs until a final agreement is reached, then one spouse may need to file a motion seeking the court’s intervention. The Court will decide, on a temporary basis, issues such as temporary maintenance, temporary child support, temporary custody, carrying charges on the marital home, interim counsel and expert fees, exclusive use and occupancy of the marital residence and temporary restraining orders.

On August 13, 2010, Governor Paterson signed into legislation two new revisions to the Domestic Relations Law dealing specifically with temporary maintenance and interim counsel fee awards. Under the new law, temporary maintenance will be decided pursuant to a statutory formula similar to the way child support is computed already. With respect to interim counsel fees, the new law makes it easier for the non-monied spouse to receive a counsel fee award during the beginning stages of the litigation.

Exclusive Use and Occupancy of the Marital Residence

Another issue that affects a lot of our clients is the Exclusive Use and Occupancy of the Marital Residence. Many times the two parties remain in the same residence during the divorce proceedings. Generally Courts may order an award of interim exclusive use and occupancy of the marital residence to one party where it is demonstrated that the relief is necessary to (i) protect the safety of persons or property, or (ii) one spouse has voluntarily established an alternative residence and a return would cause domestic strife.

Generally, allegations of petty harassment and bickering do not warrant an order of exclusive use and occupancy to one spouse.

It is important to remember that an award of exclusive use and occupancy does not determine the respective rights of parties to the distribution of the property under the equitable distribution law.

Discovery

Generally, during a divorce proceeding there is full disclosure from both parties of all matter material and necessary in the prosecution or defense of an action.

The parties are entitled to a searching exploration of each other’s assets and dealings at the time of and during the marriage, so as to delineate the extent of ‘marital property,’ discoverable waste of ‘marital property’ and, in general, gain any information which may bear on the issue of equitable distribution, as well as maintenance and child support. The entire financial history of the marriage must be open for inspection by both parties. Kaye v Kaye, 478 NYS2d 324 [1984].

Typically, at the first Court conference, called the Preliminary Conference, the Court will set discovery deadlines and provide for contact with the Court prior to making discovery motions.

If a party fails to disclose certain material documents necessary to the prosecution or defense of the action, the other spouse may make a motion to compel the necessary documents or serve subpoenas on the companies where the assets are located. The other spouse may also seek to prohibit the non-complying party from supporting or opposing certain claims/defenses or from producing certain things in evidence, or request that the Court take a negative inference against the non-complying party.

Electronic Discovery

The discovery process has historically involved demands for the production of paper documentation. However, in the age of technology, information is increasingly stored electronically in addition to and often instead of on paper. Although the analysis remains the same (“material” and “necessary”), there are new and unforeseen issues surrounding electronically stored information.

Although this is a burgeoning area of law that has been addressed in a limited number of cases, the courts generally hold that “the memory of a computer is akin to a file cabinet, that the wife would have access to a file cabinet in the marital residence and should have access to the contents of the computer.” Byrne v Byrne, 650 NYS2d 499 [1996]

In addition, “matrimonial parties are entitled to full disclosure of financial records (including both hard copy and computer stored data), that some showing must be made before the cloning of a hard drive, that the services of a computer expert is required to insure complete and accurate discovery of relevant data when there are claims that files have been deleted or altered, that such an expert can nevertheless clone a hard drive and restore or rescue deleted documents, and that some files may need review by a court or referee to determine if they contain privileged data.” Etzion v Etzion, 796 NYS2d 844 [2005].