Marital & Family Law
The Ins and Outs of Marriage …And Beyond
Family issues tend to cause emotional reactions so strong that they often stand in the way of rational thinking. As times have changed, so have the laws governing families and marriages and the rights and obligations of married people. Professional legal advice from your attorney at Haber & Haber, LLP, can help you understand and sort through these issues in order to more smoothly and quickly reach a satisfactory conclusion for all concerned.
Marriage is a Kind of Contract: Considering a Prenuptial
Marriage is a legally binding agreement that cannot be dissolved without a judgment of divorce or annulment. In order to help prevent future property disputes in the event of divorce or death, many people enter into a pre-marital (pre-nuptial) or post-marital (post-nuptial) arrangement, in addition to the marriage contract itself. A young married couple with no children, no assets and no business interests probably does not need this type of agreement. However, a middle aged person with children from a prior marriage, a house or other assets may wish to consider this type of agreement. Marital contracts should be drawn by attorneys representing each partner after the partners have made full and fair disclosure of their assets. Your attorney at Haber & Haber, LLP can help you decide if such an agreement is right for you or your partner, after careful evaluation of both partners’ assets and overall financial situation.
Separation: Considering a Trial Divorce
When you are divorced, you are no longer married. When you are separated, you are still married but have chosen to live apart. Some people choose to separate as a “trial divorce.” In New York, a legal separation does not turn into a divorce after one year. Rather, it provides the ground for a simple and uncontested divorce if the parties have lived in accordance with the terms of the agreement for more than one year.
Divorce in New York
In New York, a divorce will be granted on the following grounds: cruel and inhuman treatment, abandonment, imprisonment, adultery, or having lived for more than one year pursuant to the terms of a judgment of separation or separation agreement. In addition, New York now allows “irretrievable breakdown for a period of more than six months” as a ground of “no-fault” divorce. In some cases, both parties wish to obtain a divorce and agree on all the issues involved, such as, division of the property, spousal support, child custody, support and visitation. In this type of case, where all of the issues are agreed upon, obtaining a divorce is relatively simple. This type of divorce is obtained without either side having to ever appear in court and is called an uncontested divorce. Your attorney at Haber & Haber, LLP can answer any questions you may have and can help you decide if this type of divorce is right for you.
Going Through a Divorce
There are quite a few steps involved in obtaining a divorce where one or more of the issues involved is not agreed upon. This is known as a contested divorce. In this type of divorce, it is essential that you have a lawyer who is experienced in matrimonial law from the very beginning. Your lawyer at Haber & Haber, LLP can protect your rights and those of your children.
The action for divorce begins with establishing the grounds for divorce and serving a summons and complaint. The papers must be filed with the clerk of the Supreme Court. Often, a motion needs to be filed for temporary child support, maintenance, orders of protection or exclusive occupancy of the marital home. These motions are referred to as “pendente lite” relief and govern the period between the time the action is started and a judgment of divorce is granted or the case otherwise settles. There are generally negotiations to attempt to settle all of the issues before a trial. Actually, very few divorce cases go all the way to trial. However, if all of the differences cannot be resolved and a settlement cannot be reached, a trial will be necessary. After the trial, a judge will issue a decree determining a division of property, custody, visitation and support of children, and payment of any “maintenance”.
New York has enacted a law called “Equitable Distribution”. This essentially means that the property is fairly and equitably divided between the parties. This is different than a “Community Property” state where the property is split in half between the husband and wife. Your attorney at Haber & Haber, LLP can navigate the many issues involved concerning Equitable Distribution and Child Support.