If you and your spouse have no children, no real property and no assets, which is common for marriages of short duration, as well as in other situations, you may be able to obtain an uncontested divorce. If your spouse consents or fails to object, the divorce will be granted almost immediately.
If, however, you or your spouse have minor children, assets, such as a house, pension, stocks, interest in a business, then you need more than just termination of the marriage; you need a determination of who should get which asset, where the children will live, child support, visitation, etc. A spouse may also require alimony, which is now called “maintenance.” Other issues, personal to your situation, may also require resolution. Back to Top.
If you and your spouse can rationally discuss a fair division of the assets, child support, maintenance, possession of the marital residence, custody of the children, visitation, etc., and of course, other issues personal to your situation, then you both can enter into a written agreement which lists the agreed upon terms of the separation. This is called a “Separation Agreement.” It must be drafted, reviewed and executed by an attorney. Once it is executed, you and your spouse are legally separated.
UNCONTESTED DIVORCE BASED UPON A SEPARATION AGREEMENT
One (1) year after signing the agreement, either you or your spouse can file for a divorce based simply on the ground of “Living Apart Pursuant to a Separation Agreement.” This type of divorce is also granted on an uncontested basis because all of the issues have been resolved. The Separation Agreement is incorporated in the judgment of Divorce and becomes not only the basis for the termination of the marriage, but also, becomes the judicial resolution of the issues between the parties. Back to Top.
NEW YORK STATE GROUNDS FOR DIVORCE
There are five grounds for Divorce in the State of New York. New York State does not recognize the so-called non-fault grounds of Mutual Incompatibility, Irreconcilable Differences, or a dead marriage.
The only grounds available in the State of New York are:
- Abandonment of the plaintiff spouse by the defendant spouse for a period of one (1) or more years;
- Cruel and Inhuman Treatment of the Plaintiff by the defendant;
- Living Separate and Apart for a Period of One of More Years Pursuant to Written Separation Agreement;
- Incarceration in a Prison for a period of three (3) or more years;
In only a few situations is the question of whether or not a divorce should be granted an actual issue. In most cases the Courts of the State of New York will grant a divorce when one party makes an appropriate demand, even if the other party aggressively opposes it. It is generally not considered to be in the public interest to keep two people married if they can’t get along with each other.
OPPOSITION TO THE GRANTING OF A DIVORCE
But if facts to support any ground for divorce do not exist, you will be denied a divorce in the State of New York, or you could successfully oppose your spouse’s application for a divorce. This could occur, for example, if the parties remained living together and no violent, verbal or physical abuse or adulterous behavior occurred, or if they mutually agreed to live apart without a Separation Agreement and have remained apart without committing adultery. Opposing a spouse’s application for divorce is generally a tactic to avoid distribution of assets or payment of spousal support or to avoid sale of the marital residence.
A contested divorce usually means, then, that the parties are fighting over custody of the children, the amount of child support, division of assets, who shall have the marital residence, how the children shall be brought up, a share in the business, compensation for the degree or license earned by your spouse during the marriage, etc. A contested divorce can be extremely expensive. Appraisers must be hired to evaluate the house, other assets, pensions, etc. Expert opinion may be necessary to secure proof of contribution for the purpose of equitable distribution of the marital property. Where custody is an issue, psychological evaluations must be made of the parents and the children.
RESOLUTION OF CONTESTED DIVORCE WITHOUT A TRIAL
It often happens, however, that a spouse who initially insists on being unreasonable, who refuses to participate in rational discussions to terminate the marriage, may after having been served with legal papers and after having consulted with an attorney, consent into entering into a Separation Agreement. Thus, commencing what appears to be a contested divorce does not mean that you cannot enter into a Separation Agreement at a later time and ultimately get an uncontested divorce incorporating the Separation Agreement.
OBTAINING A DIVORCE BASED ON A SEPARATION AGREEMENT WITHOUT WAITING ONE YEAR
It is also possible, if the defendant consents, to file for divorce immediately after signing the Separation Agreement, without waiting for the year. This would necessitate suing upon one of the other five grounds, while incorporating the Separation Agreement into the judgment, but it is frequently accomplished when both parties desire a Separation Agreement and an immediate divorce without waiting for the year.
NON-COMPLIANCE WITH TERMS OF SEPARATION AGREEMENT
A spouse who enters into a Separation Agreement but who fails to substantially comply with the terms can be denied a divorce. Thus, a spouse who is obligated to allow visitation, to pay child support or maintenance and who refuses to do so, can be prevented from obtaining a divorce; of course, the spouse in compliance may obtain a divorce.
Even if your divorce is amicable, it is a very distressing time. The decision to end a bad and painful marriage can be just as distressful as remaining in a bad marriage. The decision to terminate a relatively successful marriage, or one that has the approval of family and friends, can also be distressful. Often, there is opposition to the suggestion that psychological counseling may be beneficial. The cost, time involved, or the feeling that it is your spouse who needs counseling are frequent reasons offered against counseling. In difficult and emotionally charged situations, particularly where it is your spouse who is behaving in a destructive and angry manner, counseling can be enormously helpful. Children and adults often benefit from short term psychological counseling in these situations. Although you are free to select your own counseling, we also have a number of names for referral. In addition, there is a support group, started many years ago by a client of ours, for people going through divorce or separation. It meets at St. John’s Evangelist Church (Rectory Basement) Route 212, Saugerties, NY 12477 at 7:30 P.M. on Wednesday evenings. This is free and there is no professional guidance. But the nature of the meeting is often helpful and often better than the nervous and angry advice offered by your family and friends who be pushing their own points of view as to what is best for you.
As to couples who are residing together and are not married, is essential that a written contract be entered into. This is particularly advisable when the relationship is going well. If it should become acrimonious, it may be too late to reach a written accord of expectations, contributions and obligations. Back to Top.
Custody and Visitation
Even when the parents are able to separate in a friendly and cooperative manner, the children will have many concerns. Parents should tell their children about the divorce as soon as they have reached a firm decision. Children should be informed to the extent that is age appropriate. If possible, both parents should tell the children simultaneously.
IN A FRIENDLY DIVORCE
The parents should express their sadness about the breakup of the family because it will give the children necessary permission to mourn without having to hide their feelings of loss from the adults or from themselves. The parents should present the decision to divorce as a solution that the parents reached together, after they had tried every other way they could think of to solve their differences. In this way, the adult can convey the sense that they are responsible, loving parents who remain committed to the children even though they have reluctantly decided to go their separate ways.
Parents should explain honestly that things will change. Life will be temporarily disorganized, routines will be disrupted. One parent will be moving out of the home. The house may be sold, and the family may have to move to a new neighborhood. The mother, if not already doing so, may go back to school or take a part-time or full-time job. In short, the parents must make it clear that the divorce will bring many changes that the whole family will have to face and overcome.
The parents should tell children of all major developments, as the family reorganizes. Children feel powerless at divorce and should be invited to make suggestions in matters concerning them. Adults should seriously consider these suggestions. They should be assured that they will have a say, for instance, in setting up the visiting arrangements. Once the schedule is settled, it should be explained to the children in detail.
The children should not, however, be made to feel responsible for making major decisions. The goal is to involve them appropriately so that they can feel that they are participating in working out a solution to the family crisis. The parents should advise the children that the divorce will not weaken the bond between parent and child, even if they live apart. They need to be reassured that, though parents may divorce each other, they do not divorce their children. The children should be told realistically that everybody will have to work hard to maintain these important connections.
The parents must stress to the children that the divorce is not in any way the fault of the child. They must be assured that the problem existed strictly between the two adults. The children should never be allowed to assume guilt for causing the breakup. The parents must state clearly that the divorce is an irrevocable decision and that the children should not and cannot waste their time and energies in the fruitless schemes and fantasies of bringing their parents back together.
The parents will want to make every effort to keep separate their own hurt, anger, and needs from the needs of their children. Children have a right to their own feelings and should not be asked to take sides or be forced to wander a no-man’s, land in the divorce war. Above all, both mother and father must give their children permission to love and maintain a relationship with the other parent. This may be the hardest task of all for the adults, but it can be done. With a caring, courageous effort on the part of each parent, the children, even in the midst of their turmoil, can feel supported and loved.
CONTESTED CUSTODY AND VISITATION
Contested custody litigation is among the most bitter of lawsuits. It is common for one side to feel that the other side does not even want custody, but is just using the threat to force a better financial settlement. Often this accusation is in fact true.
RETAINING A PSYCHOLOGIST
It is very important to get the children into therapy with a psychologist as soon as possible. If temporary custody is awarded to the other parent, you will not be able to do this once court orders are obtained. It is critical to do this as almost the first step if you know or sense that there will be a custody fight. You then need to work with the psychologist and be prepared to follow his or her advice. This strengthens your court case. Having the children in therapy with a psychologist that you feel comfortable with is considered a healthy step in the court system. When the Court has an independent do an evaluation, usually the evaluator will consult the therapist you have already retained. This may assist in getting your point of view across.
Most importantly, the psychologist may be able to head off custody litigation and assist the parties in reading a mutually agreed position. In a serious custody action, therapists, court mental health evaluators, alcohol and drug evaluators, pediatricians, emergency room personnel, the children’s babysitters or day care, nursery school teachers and staff, public school teachers, neighbors, old friends, former friends, relatives, and the parties may all testify. The children, if called and if permitted to testify will usually testify privately to the judge in chambers, without the presence of the parents.
It is important for you to keep a journal, a daily record all events which impact upon your children’s lives. Dates, times and places are essential. Your custody or visitation “journal” (a separate notebook) is a daily record of events which impact your children’s lives, and which reflect upon either parent’s abilities as a caretaker for your children. This journal should be kept on a daily basis, both so that you do not forget important events and so that you are not later accused of erasing events which may or may not have occurred.
You should list both the routine and special events which take place on a given day. While routine items (e.g. preparation of a meal) may not seem important at first, when viewed as part of a long-term pattern of care they take on great significance. Be as detailed as you like, for example your description of a meal’s preparation might include a “menu” (to show that your children receive nutritional meals), as well as a description of the children’s roles in setting the table, in fixing the salad or dessert, and in helping clear the table (to show that they are taught a sense of teamwork and responsibility).
Your journal should also include statements that the children make, or a description of matters which you and the children discuss. These do not need to be matters directly relating to the custody and visitation issues – in most cases it is not helpful for you to “provoke” discussion in those areas – but may include your children’s feelings about you or the other party, as well as their statements about day-to-day occurrences in their lives.
It is very likely that the contents of your journal will be used in court should your case go to trial. Oftentimes, we will utilize it to show your contemporaneous recording of events, or to refresh your recollection on the witness stand. Because of this, you must be careful what you write. Your journal is obviously not the place for you to chronicle your love life, or to apologize for any shortcomings you may feel you have as a parent. It should not contain any inappropriate language or comments. And, while it is proper to write about events or statements which put the other party in a bad light, be careful not to overdo it. The tone of your journal generally should be positive and a reflection on your good points , it should not be solely a “smear piece” against the other party.
We view your journal as one of the most important devices available to assist in your case. For that reason, we encourage you to ask us any questions you have about it. Also, after you have been keeping a journal for a week or two, send us a copy. That way we can offer our comments on what you are doing, and perhaps offer advice on what can be done to improve the record you are keeping. Back to Top.
The old adage “a picture is worth a thousand words” holds true in custody and visitation matters. It is almost always the case that photographs can be used to illustrate some aspect your care and ability as a parent, whether it be to show the Court the physical setting (home, living and sleeping areas, nearby playgrounds, etc.) you provide your children, or the various events and activities which you enjoy with them.
If you do not have a camera, get one. Photograph your home and all its living areas, giving special attention to where the children eat, sleep and play. Take pictures of the yard, any nearby playgrounds or parks, and any other places (e.g. grandparents’ house) where the children spend a substantial amount of their time.
Photograph routine events in the children’s lives (such as getting off the school bus, or saying bedtime prayers) in order to illustrate how their days are spend and your involvement on a daily basis. Photograph special events, holidays, trips and vacations, and be sure to include your children’s friends and extended family (grandparents, aunts and uncles, cousins) in photos of family gatherings. Do not forget to include yourself in many of these photos.
If any “bad” things appear, such as your children having injuries or bruises you should (among other things) take a picture. You should also take steps to preserve any photographs or family albums you already have, so that a record of your past involvement in the children’s lives can be shown to the Court. Videos are another means to depict your involvement with the children. One warning: since most video recordings also include sound, be careful that you are not heard “directing” your children about. Our purpose in proving your genuine love and care for your children may be undermined if you are perceived to have “staged” certain events. Back to Top.
Videos are another means to depict your involvement with the children. One warning: since most video recordings also include sound, be careful that you are not heard “directing” your children about. Our purpose in proving your genuine love are care for your children may be undermined if you are perceived to have “staged” certain events.
Audio recordings are notoriously inaudible. Do not be surprised if your initial efforts produce only background noise and incomprehensible voices. An audio recording (i.e., a tape recording) of statements or other events may prove helpful in certain circumstances. For example, if the other parent is often drunk, or chronically shouts at the children, a recording of his/her voice may help to prove it. Another common example occurs when parties live apart, and one party uses the telephone to issue vulgarities to the other, or to act unreasonably in terms of visitation.
Extreme caution must be exercised, however, before audio recording is done. There are two reasons for this: First, certain types of recording (eg. a telephone “tap” between two unsuspecting people) are illegal and cannot be used for any legitimate purpose; Second, we want to be sure your recording things does not lead to your “provoking” family conflict or even violence. If it does, and the tape is heard by a neutral listener, you will not gain from it. Back to Top.
RECORDS AND DOCUMENTS
You should begin gathering those records and comments which will demonstrate your caring for your children. Examples of these include pediatrician’s bills (to show your attention to health matters), report cards and school correspondence (indicating your involvement with your children’s education) and similar formal documents. Other examples of items you should provide are “informal” documents such as cards made for you by your children, artwork done at school, or anything which you feel may give some insight into your children’s care and their feelings about things. Indeed, you should not limit yourself to just “documents”. For example, a birdhouse built by your children and you may help to tell a story to the Court.
LETTERS OF REFERENCE
In many cases we find it helpful to receive letters from persons familiar with you or your children. These may include neighbors, teachers, babysitters, or anyone else having information which would support your claim. Letters from your parents and family, may be especially helpful, as may those from your employer.
These letters should explain how the writer knows you or your children, and what he/she has observed. The writer may wish to state an opinion as to your abilities as a parent or your relationship with your children, and this is welcome too. These letters are not “evidence”. Their usefulness is limited by the rules of evidence which the courts must follow. Their purpose is threefold:
- To provide us with good idea of what people are likely to say if asked to testify on your behalf. (We will then contact your “references” to obtain further information and, if needed, arrange for testimony);
- To get people “thinking” about your case, and how to help you. (Oftentimes people will remember helpful facts which would not other-wise have come to mind);
- To “lock in” a person’s comments. Someone’s opinion of you is less likely to change at Court, if we have his/her statement in our file. Back to Top.