When you are faced with divorce, working closely with an attorney who will explain your rights and options can help you make decisions that are in your best interests. Contact our firm today to schedule a consultation and case evaluation with an experienced family law attorney.
New York is Not a "Community Property" State
New York is not a community property state, but engages in equitable distribution of assets upon divorce which needs to be fair and take into consideration factors such as the following:
- Health and age of each spouse
- Property and income of each party at all times during the marriage Ability of individual spouses to earn a living
- Length / duration of the marriage
- Loss of inheritance, pension, disability or retirement rights upon divorce
- Contributions during marriage (as a parent or homemaker)
- Other property distribution made (through spousal maintenance, or other assets held as separate property)
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The information about marital property distribution in New York divorce found on this Web page is of a generalized nature and does not necessarily pertain to your individual circumstances. Contact the law offices of Colwell, Colwell & Petroccione, LLP in Albany to schedule a consultation with a lawyer regarding division of assets and debts in your New York divorce.
Whether your New York divorce is contested or uncontested, you need proper advice and adept representation as you prepare for mediation, settlement negotiations, collaborative law meetings, trial or family court appearance. Contact us to discuss your high asset or "middle class" divorce with a knowledgeable attorney.
Divorce Overview - The Basics
Contemplating divorce is difficult. Whether or not you are sure you want to end your marriage, it helps to learn the basics of divorce law. Should you conclude that divorce is necessary, it is important to seek the assistance of an experienced family law attorney at Colwell, Colwell & Petroccione in Albany, New York.
Grounds for Divorce
A divorce is a judicial decree by which a valid marriage is dissolved. From a legal standpoint, the divorce process will divide the couple’s assets and debts; determine the future care and custody of their children; and give each person the legal right to marry someone else.
Every state has some form of "no-fault divorce," but the laws vary a great deal from state to state. Generally, a divorce will be granted if one spouse states that the marriage has irretrievably broken down or the couple has irreconcilable differences. (Other residency and filing requirements must also be met.) This is different from the past, when only "fault divorces" were available. In a fault divorce, one spouse must allege a martial wrong like adultery or abuse in order to receive a divorce.
In some states, both fault and no-fault divorces are available. An experienced family law attorney can help you determine whether and how to pursue divorce.
Resolving Issues During Divorce
Before a divorce may be granted, five basic issues typically must be resolved. They are:
- Alimony/spousal support
- Property and debt division
- Child custody
- Visitation/parenting time
- Child support
If the spouses can reach agreement on these issues, then the divorce is uncontested. If, however, the spouses cannot agree, the divorce is contested. The spouses may go to trial to resolve the issues. This usually means that a family court judge will make the final decisions. Alternatives to going to court include mediation, arbitration and collaborative divorce. Some courts may even order the spouses to attempt to resolve their differences through alternative dispute resolution:
- Mediation. Mediation is an alternative to litigation that can be less expensive and less stressful for divorcing couples and their children. In the mediation process, the couple works with a trained mediator to reach agreement on contested issues.
- Arbitration. Arbitration is more like court than mediation, but it can still be quicker and less expensive. Instead of using a judge to decide the outcome, the parties agree to use an arbitrator. Each spouse will have a separate attorney who will represent each spouse’s interests.
- Collaborative Divorce. Collaborative law is a relatively new divorce process that requires an up-front commitment to resolving disputes by negotiation, compromise and agreement. If either side decides to go to court, both attorneys are disqualified from representing their clients in the courtroom. The spouses find new attorneys and go to court.
Alimony, Spousal Support and Maintenance
Alimony (also called spousal support or maintenance) is financial support that one spouse pays to another. The alimony can come in a lump sum, over a limited period of time or indefinitely. Because the laws vary from state to state, it is best to consult an attorney with questions about alimony. Factors that the court may consider in determining alimony include the length of the marriage and the ability of each spouse to earn a living.
Division of Property in Non-Community Property States
Courts in states that use the non-community property system typically make an equitable division of property between the divorcing spouses. Equitable means fair, rather than necessarily equal. The court makes the decision based on the circumstances of the divorce, the non-financial contributions to the marriage of each spouse and missed academic or career opportunities.
Conclusion
Making the decision to end a marriage is difficult. Even so, it is in your best interest to approach the divorce process from a rational, businesslike perspective. Working with an experienced family law attorney from Colwell, Colwell & Petroccione in Albany, New York, will help you get through the process and begin your new life.
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