How long does a divorce take in New York state?
It is difficult to give a precise answer to this question. Depending on the level of complexity, a divorce can take anywhere from a few months to a few years.
Some divorces proceed uncontested, and can be finished in only a matter of months. Others that are contested can last more than one year.
During your consultation, we would be in a better position to evaluate your case and give you a more precise answer.
What are the procedures for a divorce from the day I walk into your office?
The initial consultation will provide you with a wealth of general information about your divorce situation. If you should retain Zimmer & Associates, you will need to sign a Retainer Agreement which defines the terms of representation and the payments agreed upon.
From that inital step, we immediately start working on your case. No matter what direction we take, you will be fully informed and always kept up-to-date with what is going to happen next.
In a typical divorce matter, once you retain our services we will evaluate your particular situation and come up with a strategy to best protect your interests.
After signing the Retainer Agreement, there are several avenues a divorce can proceed:
A Separation Agreement;
A Summons with Notice;
A Summons with Verified Complaint;
An Order to Show Cause seeking Emergency Relief;
Family Court Petitions followed by items 1-4
The Summons with Notice can be generated immediately and served upon your spouse as early as the same or next day. If you have been served with divorce papers, you should seek representation with Zimmer & Associates immediately.
We can handle your matter regardless of the stage that it is in, from commencement to a matter that is approaching trial.
What is a retainer agreement?
A retainer is an agreement between Zimmer & Associates and you the client. The retainer for divorces (unless it is an uncontested divorce) will be based on an hourly rate.
The average retainer involves ten hours of legal service, together with necessary expenses for filing and service of process.
I heard that grounds are no longer needed in New York and the state has moved to a new "no fault" system?
Yes, that is basically true. The old grounds for divorce still exist in the divorce statutes, known as the Domestic Relations Law (DRL). However, an additional "ground" was added and went into effect on October 12, 2010.
This has been referred to as the "No Fault" divorce law. What this additional "ground" accomplished, was that it made all the previous grounds virtually obsolete. Under this rule, the Plaintiff no longer has to prove his or her spouse was at fault.
Under this new ground (DRL section 170(7)), a Plaintiff must swear under oath only that there has been an irretrievable breakdown of the marriage for a period of at least six months.
The intent of the lawmakers was that it cannot be challenged by a defendant.
The grounds currently available for a divorce are as follows:
Cruel and Inhuman Treatment;
Living Separate and Apart for more than a year.
Irretrievable breakdown of the marriage (DRL section 170(7) was enacted as of 10/12/10.
Some 99% of all divorces filed before the enactment of DRL section 170(7), ultimately concluded with Constructive Abandonment for the grounds used.
This meant there was no sex in the marriage for one year prior to the divorce. However, with the passage of DRL section 170(7), now the trend has shifted where 99% of all new divorces are under this ground.
Can the old grounds for divorce still be used?
Yes. Often, there are specific reasons another ground would be used in conjunction with or as opposed to DRL section 170(7). Typically, divorces are served alleging several grounds.
The chief reason for using some of the other "fault" grounds would be to cause embarrassment to the faulting spouse, or if the fault was "egregious." For example, the situation was so serious as to warrant a greater financial award — a true rarity.
What is a summons with notice?
The Summons with Notice is generated and then filed with the County Clerk's Office. This does not require your signature. The County Clerk accepts it and receives a check for $210 immediately.
Thereafter, your Summons with Notice must be personally served (hand delivered) to your spouse within120 days. These actions are often served immediately, however, there may be specific strategic reasons to delay the service.
Service on a spouse will be done by a professional process server hired by Zimmer & Associates, and an Affidavit of Service will be prepared. It will then be filed in the County Clerk's Office.
Your spouse will then have 20 to 30 days to respond to this summons. When your spouse responds, the issue is "joined" or as we could say, the "ball is now in play."
What is a summons with verified complaint?
A Summons with Verified Complaint is more elaborate than the Summons with Notice. It states the allegations set forth in the Verified Complaint.
There are many reasons for an attorney to do a Summons with Notice and/or a Summons with Verified Complaint. For example, if we start with a Summons with Notice, we later have to prepare a Verified Complaint. If you believe your spouse will be represented by an attorney then we will most likely start with a Summons with Notice and later supplement with a Complaint.
This way, we can negotiate the grounds of the complaint and possibly do it in a more cost effective manner.
If your spouse cannot be found or be represented by an attorney, we would want to start immediately with the Summons and Verified Complaint so that only one service of process is needed by a professional process server.
If your spouse has retained an attorney, we do not have to use a process server to serve the Verified Complaint. It is assumed that your spouse is aware of the divorce action.
What are automatic restraining orders?
Your summons, otherwise known as an action for divorce, now comes with something called "Automatic Restraining Orders."
Just your mere filing for a divorce initiates these automatic orders. Once your spouse is served with the divorce action, both of you are automatically restrained from taking certain actions that would be deemed outside the course of ordinary business.
The purpose of these restraining orders being enacted by the legislature was to prevent a spouse from running to the bank or liquidating some or all of your assets in retaliation for being served with divorce papers.
You should be cautioned that these restraining orders are against not only your spouse, but also the Plaintiff, otherwise called the filing party.
The goal of these orders is not to prevent either party from spending money for day-to-day items, or running the household.
The automatic orders should not have a significant impact of your life and offers both parties the protection against an embittered or retaliatory spouse from taking extraordinary measures to dissipate marital assets or run-up significant unreasonable debts upon commencement of the divorce action.
These orders and their impact on your life can best be explained during your consultation at Zimmer & Associates.
What is an order to show cause?
The Order to Show Cause is a method in which we receive "ex-parte" relief immediately. An Order to Show Cause is an emergency application. The order is a blank order requesting emergency relief.
It is granted for such things as:
exclusive use and occupancy of the house
a temporary restraining order;
immediate custody of the children;
restraining of specific bank accounts;
temporary restraining order preventing assets from being transferred;
maintenance and alimony;
payment of bills from your spouse;
payment for child support immediately;
payment of the mortgage and carrying charges;
The Court will read the blank order we provide together with an Affidavit (your statement as to why you need an emergency order); and our Affirmation showing the legal basis for the order.
Depending in the nature of the relief being requested, your spouse may have to be notified in advance that you are seeking this relief. Of course, there are exceptions to the rule where you can seek emergency relief from the Court without even notifying your spouse.
Once you appear before a Judge alongside your attorney, the Court will then sign the order and may grant the relief requested if they deem same to be necessary or a true emergency.
If the judge does in fact grant the relief you requested, then it automatically becomes a Order of the Court and must be followed by your spouse. The procedure does not end there, in fact, this is just the beginning.
It will then be incumbent upon us to immediately serve the Order to Show Cause upon your spouse and allow them an opportunity to tell the Judge why the relief you requested should not be granted.
Ultimately, the Court will make a final determination on that application, which may take a few months, or even much longer.
This is certainly an aggressive way to start a lawsuit, but at times necessary. In fact, these types of applications can be made at anytime during your divorce, and are often necessary if an emergency arises.
Zimmer & Associates will not hesitate to file one of these applications on your behalf if we deem it to be necessary. You can be rest assured that we at Zimmer & Associates will go to any lengths to protect your interests.
What are separation agreements?
Separation Agreements can be a prelude to a divorce. In general, the law provides that if you prepare a Separation Agreement and file it with the County Clerk's office, then one year later it can be turned into a divorce, also called a conversion divorce.
After a minimum of one year passes, a divorce may be commenced. At this time, multiple documents will have to be filed with the Court by your attorney to actually convert the Separation Agreement into a divorce. Ultimately, a divorce judgment will be granted on the basis and grounds set forth in the Separation Agreement.
You may be asking what are the advantages to a Separation Agreement. This direction is not for everyone and usually there are very specific reasons why a couple would take this route.
One of the best reasons is health insurance related. During the time of separation, you may legally remain on your spouses health insurance. This may carry some distinct advantages for both spouses.
If you are contemplating a Separation Agreement, we will gladly provide you with a comprehensive and airtight Separation Agreement. All of our Separation Agreements have been upheld by the courts, and none of have been effectively challenged.
What is an order of protection?
If there is domestic violence, then you may be eligible for of Order of Protection. These types of protective orders are typically granted immediately, ex-parte. Ex-parte means without the other side being present.
An Order of Protection generally carries either a "Stay-Away" provision or a "Refrain from Acts and Threats of Violence" provision. With a stay away provision, the offending person must stay away from the protected party's home, work and/or school.
Typically there is a no contact provision added as well. With a "Refrain From" provision, the offending party need not stay away from the victim, but they are ordered not to do anything that would annoy, harass, intimidate, or alarm that person.
There is other language or provisions that may be included as well and this goes on a case-specific basis.
Once the Order of Protection is granted on a temporary basis, the requesting party will have to prove their case in order to maintain that Order on a permanent basis. Of course, the offending party has the right to a hearing in an attempt to challenge the allegations.
Many times, these Orders of Protection are based on false or exaggerated events. On the flip side, many times the allegations are true and such an Order is necessary.
No matter what side of that Order of Protection you fall, you will most certainly need the assistance of a skilled attorney fromZimmer & Associates.
Some family court do's and don'ts:
In general, it is not a wise idea to represent yourself in Family Court. No one should be exposed to the Court system without a proper representation. The process can be as complex as it can be intimidating.
Our firm is completely familiar with the Family Court and it's convoluted and complex maze of procedures. We can successfully navigate you through that maze to achieve the best possible results.
Do not take any Family Court matter lightly. The decisions that are made there are difficult to reverse and opinions are formed early on in your case. Unfortunately, many litigants feel they are competent to represent themselves.
The truth of the matter is that even experienced Family Court lawyers hire independent representation for their own personal matters.
Are divorces winnable?
Yes they are. If the children are in a safe environment free from emotional and physical abuse and both parties are able to move on with their lives and pursue happiness elsewhere, that would be a very successful divorce.
It is our experience that we have seen many satisfied clients a year or two after their divorce enjoying their lives free from the entanglements of marriage. Many of our client's feel that they should have divorced earlier.
By the time a client walks through our door they have already moved on in their minds. When there is no longer love and the relationship is unsafe; unhealthy; or unmanageable —divorce is a solution to the problem. It is better to take action if you're unhappy and you have tried everything.
When is an attorney for the child appointed?
There are many experts that may be used in a divorce such as forensics, appraisers for businesses or houses, and also attorneys for the children. An attorney may be appointed to represent the children in your divorce.
These lawyers, formerly known as "Law Guardians," are appointed by the court to represent the children when there is a contested custody dispute or issues of visitation. These attorneys are usually excellent resources for the courts and the parties in a divorce.
The attorney for the child has the function of being the voice of the child, often making recommendations to the judge as to who should be the custodial parent.
The attorney for the children may play an essential role in your case.
What are experts and forensics?
Experts and forensics are very useful in connection with the evaluation of businesses and/or custody matters.
With respect to businesses, we work with forensic accountants and we are known for our ability to assist the Forensic Accountant in evaluating our client's assets and/or the assets of our clients spouse.
There are certain assets and businesses that require the services of a Forensic Accountant in order to determine what portion a spouse may be entitled to in connection with a divorce.
For example, a couple marries while one of them is in medical school, and later becomes a physician in a medical group.
That case would require a Forensic Accountant. The Forensic Accountant would evaluate the spouses enhanced earning or earning capacity as well as the value of the medical practice and the spouses share in that medical practice as it relates to the divorce.
The spouse that did not go to medical school or become a physician would be entitled to a part of the physician spouse's portion of his/her medical practice. This occurs with many professions including lawyers and other businesses.
We have helped spouses with businesses retain the majority interest in their businesses when their spouse has been less than an equal partner; has been less than supportive; and is not truly entitled to a large percentage.
On the other hand, we have represented spouses that were more than supportive; self-sacrificing and exemplary in their selflessness and were entitled to much less than the average percentage formula in connection with their spouses business or practice.
Forensic Psychologists are a very important resource for the courts and for attorneys and parties in connection with custody battles. A good forensic could assist the court in determining parental fitness and the dynamics of the parent/child relationship.
Forensics are often used in custody matters. Forensics as a whole should not determine the custody case. We have been quite successful in using forensics as a tool to prove our clients fitness as a parent and to obtain custody.
However, we have also been successful in obtaining custody for clients when forensics have recommended to the Judge that our client should not have custody.
What are appraisers?
Appraisers set a value on businesses, houses, real estates, automobiles, boats, yachts, artwork, jewelry, etc. The most common asset in Long Island is the marital home. Homes purchased ten years ago have dramatically risen in value.
A good real estate appraiser can assist us to determine the value of an asset needed to settle a case or win a significant percentage of the equity at trial. Additionally, there are many issues that appraisers can help.
For example, separate property claims; improvements and other value.
For instance, if a spouse uses a personal injury award or an inheritance (traditionally separate property) to improve a marital residence by adding an extension, an appraiser can find us several values such as: the value for the residence today; the value of the residence prior to the addition; and the difference including how much of the appreciation was due to the inclusion of the extension.
Appraisers can make complex additions to real estate; separate property claims; down payment issues; and capital improvements into hard numbers, which can be calculated and divided in a court.