Are you considering divorce but don’t know where to start? Learn from experienced Jamestown divorce lawyer Scott Humble to learn more about steps on preparing for divorce in New York.
Preparing for Divorce
Divorce has really changed over the last almost 30 years of my practice. Back before the law changed, we had to have grounds for divorce, whether it was cruel and inhumane, adultery, imprisonment, abandonment, whatever; that’s a lot of what people think of as grounds for divorce. New York, of course, was the last state in the Union to go in to implement what’s known as a no-fault divorce. What that means is that it doesn’t matter if there’s fault like cruel and inhumane treatment or adultery, or whatever the case may be. You are entitled to a divorce, if you really want one, if you have not gotten along with your spouse for the last six months. That’s a relatively low bar to cross to go and get a divorce. Six months is not a lot of time and all you have to do is either testify in court or sign an affidavit that you haven’t gotten along, and your divorce will be granted.
Filing for Divorce
When clients come in, we go over what is needed to go and actually file the divorce. We’ve got paperwork, and a list, and that kind of stuff. Essentially, it comes down to everything related to finances, whether it’s income with pay stubs; tax returns; assets, as far as titles to the house, the deed; titles to vehicles; titles to whatever. Then we get into retirement accounts, investments, and all kinds of stuff like that – checking accounts, savings accounts. It’s all financial, really, when it comes to documentation. You have to look at divorce in two parts.
There is the first part: whether or not you can get a divorce. Now that New York State has no-fault divorce, anyone can get a divorce after six months of not getting along and sign the affidavit or ordered to testify in court, and that part of the divorce is granted. The court calls that a bifurcated divorce because the first part is actually getting the divorce and the second part is the finances. The way I like clients to look at the finances is that it’s a partnership. It doesn’t matter who went to work and who stayed home, or who made more money, who made less money – whatever the case may be. That’s kind of something you guys, when you’re married, you agreed to. Whether it was verbally or not, it’s an agreement. The courts look at that and say, gee, that’s a partnership and anything that came into the marriage – there are exceptions, but – is going to be split 50/50.
There are exceptions. The exceptions would be, for example, a gift. Your father or your mother passed and gave you something specific, let’s say it’s an antique, that is something that is separate property. Also, usually what is considered a separate property as well is a personal injury type of compensation, whether it’s through civil litigation, or workers’ comp or disability. If there’s a lump sum, that can be considered separate property. Once you go and put it into a joint account, it becomes commingled and then it is, generally speaking, marital property to be divided.
Serving Divorce Papers
I was talking with a client last week and they had gotten a previous divorce before the law changed as far as what you are served with as a defendant – and it also applies to you as a plaintiff – in a divorce under today’s statutes. Now, we are required not only to give a summons with a notice or a summons with a complaint to go and start the action to the defendant, but there are three other documents as well.
One is a QDRO notice, and that is telling you that you are not going to be able as a defendant or plaintiff to be on the other party’s health insurance after the divorce. You’ve got QDRO rights, which means that you can go and get insurance, which will be very expensive, from that company, normally for six months; usually that is cost-prohibitive. Another thing is an injunction. Essentially, this is an injunction notice so that no assets in the divorce can be transferred – and that’s very important – so that everything stays status quo until the judge reviews it and makes sure that everything is divided the way that it should be divided.
The last thing is that you get notification that maintenance is now codified. What I mean by that is that the law is now that there are specific calculations, as far as how the maintenance is determined. We literally go and pop in the numbers, as far as your income, into the calculator that we have on the internet, and it tells us exactly how much that maintenance is. The legislature and the government felt that it was important that notice is given when you are served with papers.
Contact Our Divorce Lawyer Today!
Do you still have questions about the steps on preparing for divorce? Contact experienced Jamestown divorce lawyer Scott Humble to learn more about what is required to begin the process of divorce in New York.
