FAQ

I work in New York but I live in New Jersey. Can I use a New York lawyer to handle my divorce?

Generally no. Each state has a durational residence requirement. In New York, for most cases the period is one year. Court papers will have to filed at some point in the process. They can only be filed in a state where one or both of the parties resides.

I just moved to New York last month, how long do I have to live here to get a divorce here?

One year.

Will the court require me to produce my marriage certificate?

No.

Should I change my will?

I believe, as do most lawyers, that you should have a will. In New York you cannot disinherit your spouse. If there is no will, your spouse and children will get everything. If there is a will, you can limit your spouse to one third of the estate.

Can my spouse’s lawyer get my psychiatrists records?

If child custody, or your emotional state is “in issue” those records will be reviewed by the court and they may be turned over to your spouse’s psychiatrist.

Could I also be compelled to submit to a psychiatric examination?

If child custody is in issue you maybe compelled to participate in a court ordered forensic mental health evaluation. If you are seeking spousal support, you may also be compelled to an examination.

What happens at a consultation with a New York lawyer?

You should receive a Statement of Client Rights and Responsibilities.

Is my case easier because I have my money in bank account in my name alone?

No. All property acquired during the marriage is presumptively marital property, regardless of the title. You may show that property acquired by gift or inheritance is separate property.

No. The title on the account in not binding on the matrimonial court. If the money was earned during the marriage it is probably marital property.

If I signed a prenuptial agreement does that make my case easier?

Usually yes, but not necessarily. The agreement has to be “fair when made” and “not unconscionable” at the time of enforcement. The agreement also has to be acknowledged before a notary public. If it meets those tests and is not unfair to children, it can be enforced by the court.

If my spouse was promiscuous, unfaithful, or abusive, am I entitled to monetary compensation from the matrimonial court?

Generally no. Domestic violence is a factor for the matrimonial court to consider in making an award of child custody. But for property distributions the courts look to what is called economic fault, which is what different form “marital fault”. There are exceptions. But generally the courts focus is on economic waste.

Can I leave the State of New York after the case is over?

Sure, this is America. But, if you have custody of your children you shouldn’t do that without court permission. If you do, and your former spouse makes a timely request for your return you may have to face the prospect of returning to New York or losing custody of the children.

What is joint custody?

In New York the term joint custody has a law is Lewis Carroll quality, it means whatever the lawyers say it means in a particular case. The actual term joint custody is not defined in the New York Statutes. By convention New York lawyers use the term joint “legal” custody, to distinguish it form “physical custody”

What voice do children have in all of this?

That depends upon the child’s age and abilities. A very young child can be easily influenced, or misguided. By adolescence the child’s preferences become the most important factor.

What is a Law Guardian?

Do you recommend mediation?

Not without independent legal counsel. In my opinion its like going into court unprepared. Mediation can be very economical and efficacious where both spouses have full financial disclosure and access to competent legal counsel. Otherwise, studies have shown that mediation can unfairly favor the bully and punish the spouse who compromises for the sake of peace.

Is the alternative to mediation a costly and “bloody” war?

No. At a great expense the State of New York maintains an elaborate court system for the peaceful and orderly resolution of disputes. In certain ways the court in a divorce case is like a labor mediator, supplying resolutions to specific problems that may arise during the process. The mere fact that the process is called litigation doesn’t make it unfriendly or irrevocable. Sometime we need a judge to make some preliminary rulings. That’s what they are there for.

Are divorce lawsuits different from other kinds of lawsuits?

Yes. To paraphrase the popular song from the 60s, “breaking up is hard to do”. Mental health professionals refer to divorce as a primary psycho-social stressor. Separating one’s emotions from the financial considerations can be a daunting task. Of course some issues, like domestic abuse, child abuse, and the best interests of the children, are not susceptible to a financial analysis.

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