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Procedural Considerations

Procedural Considerations

Marriage, divorce and related matters are governed by state law. The Legislature establishes grounds for divorce by statute, and can change these grounds. Many states provide for divorce on grounds of "incompatibility," irreconcilable conflict," or "breakdown of marriage." Many others still require that there be alleged and proved an act of "fault" or that the parties have lived separate for a certain length of time. In New York State, a complaint for a divorce must allege one of the following grounds, and without one of these the Court is not authorized to grant a divorce.

  • Cruel and inhuman treatment - The behavior complained about must take within the last five years
  • Abandonment - The abandonment must be for a period of one or more years
  • Imprisonment - The confinement of the Defendant in prison for a period of three or more consecutive years after the marriage of Plaintiff and Defendant
  • Adultery - Sexual intercourse with someone that is not your spouse
  • Separation - The husband and wife have lived separate and apart pursuant to a written separation Agreement for a period of one or more years
  • No-Fault Divorce - a no-fault divorce applies when one party states under oath that the marriage is irretrievably broken for a period of at least six months. A No-Fault divorce 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

Whichever ground a Plaintiff relies on, it will have to be proved. The exact type and amount of evidence necessary to prove a certain ground are established by prior cases. In this state, there may at some point be a trial at which you will have to testify about the allegations and prove these allegations to the satisfaction of the Court.

In the context of a divorce proceeding, you will be asked to provide this office with certain relevant information from which we will get the necessary facts for preparing and filing legal documents - a Complaint if you are suing or an Answer if you have been sued - with the Court.

Residency Requirements

To file for divorce in New York State of the following five residency requirements must be met:

  1. The parties were married in New York, and either party lived in New York for one year prior to filing. 
  2. The parties resided in New York as husband and wife, and either party lived in New York for one year or more prior to filing. 
  3. The cause of action occurred in New York, and either party lived in New York for one year or more prior to filing. 
  4. The cause of action occurred in New York, and both parties live in New York at the time of filing. 
  5. Either party has lived in New York for two years or more prior to filing.

If none of the residency requirements are met, the action cannot be maintained in New York.

Mechanics and Chronology

Once a Divorce Complaint is filed or answered, it is generally months before the court hears the case. Since each individual case may vary, this period could be longer - especially in the event of a contested divorce, complex property settlement, or disagreement over custody or support.

After the initial "Complaint for Absolute Divorce" has been filed and served on the other party, then if the other party intends to answer and/or file a counterclaim, he or she must do so within 20 or 30 days. Your spouse may accept service to expedite the proceeding and avoid being served at work or home. After this period has expired, and preliminary matters have been dealt with, discovery can be scheduled. Discovery is the process followed by the parties to obtain documents necessary to advance their position in the divorce matter. After discovery is completed the case can either be settled or placed on the courts trial calendar.

Our law firm will expeditiously handle your divorce case. We are always pleased to hear any good news of reconciliation and we are able to assist in in the event that you at any time want to withdraw from any litigation which is before the Court or in the process of being prepared.

Separation Agreements (Property Settlement)

Many of the matters incidental to a divorce can be more expeditiously disposed of if they are agreed (settled) between the parties and not contested in Court. The matters that are agreed on can be presented to the Court in a contract signed by the husband and wife in a Separation Agreement. The Agreement can resolve property rights, support and maintenance, custody and visitation, insurance and many other subjects. If the Court accepts the Agreement it will adopt it as part of the final divorce decree and give the Agreement the strength of a Court Order, enforceable by contempt proceedings. A divorce is not considered "uncontested" if this Agreement is arrived at only after substantial attorney negotiation.


Property Matters: Property ownership and division of the assets of a marriage, if not agreed to by the parties, will usually be decided after a trial by the presiding judge. If the respective parties to a divorce can agree themselves on the division of property, then this may be incorporated into a property settlement to be presented to the Court for approval.

Unless one party has acted in an egregious manner toward the other (conduct which would "shock the conscience of the Court") fault does not play a part in the distribution of the marital assets. Accordingly, in terms of the division of the marital property, it does not matter whether you are the plaintiff or the defendant in a divorce case.

Division of the marital assets are dictated by New York's Equitable Distribution Law, DRL 236(b). While every case turns on its specific facts, generally speaking all property that was acquired during the course of the marriage, regardless of whose name the property is held in, will be divided between the parties on an "equitable basis". While the statute does not specify an equal distribution, Courts will generally divide all marital property fairly close to equally between the parties, subject to some specific considerations.

Support of Spouse & Children: While a case is pending a spouse may be found liable for support of the other spouse and/or children. If the parties cannot agree upon an amount, the Court will determine this amount. Support amount is based upon earnings of the respective spouses and needs of the support recipient. A permanent Support Order will most likely be part of the final divorce decree.

Child Custody: If child custody and visitation rights cannot be agreed upon, then the Court will establish them, after a hearing.

Woman's Name: A married woman's rights to resume use of her "maiden" name will automatically be stated by the Court in the divorce decree. Prior to obtaining a divorce decree, a woman may resume the use of her maiden name without a Court Order as long as it is not done with the intent to defraud.

Interim Relief

It is possible to obtain immediate financial support from a spouse, and an immediate temporary Custody Order from the Courts as soon as a divorce complaint is filed. In an appropriate case, one party can temporarily be barred from certain premises or put under a Court Order to keep him/her from attacking or threatening one of the parties or removing the children from the home or the geographical area where the children are residing.

Contact Us

During your initial consultation, an experienced attorney from our firm will review with you the critical facts in your case. We believe in starting with your end goals and strategizing backwards to ensure the most efficient and cost effective method of attaining your desired result.

Contact us to see how we may assist with your case. We can be reached 24 hours a day, 7 days a week at 518-250-4281 or via email at

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