No Fault Divorce

New legislation was signed into law on August 13, 2010 by Governor David Paterson that adds a new ground for divorce which applies to matrimonial actions commenced after October 12, 2010.

DRL Section 170(7) provides as follows:

"The relationship between husband and wife has broken down irretrievably for a period of  at least six months, provided that one party has so stated under oath.  No judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce.

The 2010 legislation also substantially alters interim maintenance applications and introduces a formula method for determining the amount of temporary maintenance during the pendency of the matrimonial action.  The new numerical temporary maintenance guidelines are only applied to the payor's income up to $500,000 of her/his income and would only result in an award when there is an income gap between the two spouses such that the less-monied spouse's income is less than two thirds of the more-monied spouse's income.  For example, if the payor's annual income is $90,000 a year, the guidelines will only result in an interim maintenance award if the payee's annual income is less than $60,000.

 Child Support Modifications 

Domestic Relations Law (DRL) 236(B)(9)(b)(2) and Family Court Act (FCA) 451 have been amended to provide for modifications of child support orders and orders incorporating stipulations of settlement dated after October 13, 2010 where:

a) 3 years have passed since the order was entered, last modified or adjusted; or

b) there has been a change in either party's gross income by 15% or more since the order was  entered, last modified or adjusted;

A reduction in income may be considered as a ground for a downward modification of child support if it was involuntary and the party has made diligent attempts to secure new employment commensurate with his or her education, ability and experience.

Under the new amendments, the modifications are permissive, not mandatory.

Counsel Fees

Under new Amendments to Domestic Relations Law (DRL) Sections 237 and 238, there is now a rebuttable presumption that counsel fees shall be awarded to the non-monied spouse.  Applications for the award of counsel fees, expert fees and expenses may be made at any time prior to the entry of final judment.

An award of interim counsel fees to the nonmonied spouse will generally be warranted to enable the nonmonied spouse to litigate the action on equal footing with the monied spouse where there is a significant disparity in the financial circumstances of the parties.  Unlike a final award of counsel fees, a detailed inquiry or evidentiary hearing is not required provided both parties and their respective attorneys file an affidavit with the court detailing the financial agreement between the party and the attorney, including the amount of any retainer, the amounts paid and still owing, the hourly rate charged by the attorney, the amounts paid or to be paid to any experts, and any additional costs, disbursements or expenses.

Exclusive Occupancy

If the marital residence is titled in both names, a court cannot  award exclusive occupancy to one of the parties during the pendency of the divorce action unless one of the parties voluntarily vacates the marital residence or there is domestic violence.

Children's Bill of Rights

• The right not to be asked to “choose sides” between their parents;

• The right not to be told the details of bitter or nasty legal proceedings going on between their parents;

• The right not to be told “bad things” about the other parent’s personality or character;

• The right to privacy when talking to either parent on the telephone;

• The right not to be cross-examined by one parent on the telephone;

• The right not to be asked to be a messenger from one parent to the other;

• The right not to be asked by one parent to tell the other parent untruths;

• The right not to be used as confidant regarding the legal proceedings between the parents;

• The right to express feelings, whatever those feelings may be;

• The right to choose not to express certain feelings;

• The right to be protected from parental warfare;

• The right to avoid parents’ arguments;

• The right to rules of discipline coordinated between both households;

• The right to have both parents informed of special ceremonies.

• The right not to be made to feel guilty for loving both parents.

Divorce Mediation

Divorce mediation is a process whereby the parties work with a mediator who helps them reach an agreement.  A mediator does not make decisions for the parties and cannot provide legal advice to either party.  Rather, a mediator outlines the issues for the parties and helps them arrive at their own decisions on those issues.  The parties will be the authors of their own settlement and, consequently, their settlement will be lasting and effective.

Divorce mediation is an alternative to litigation that is generally less expensive and is less devastating on children.

The length of the divorce mediation process will depend upon the difficulty of the issues presented and the ability of the parties to reach agreements.  When the parties have completed the divorce mediation process, they will receive a document from their mediator called a Memorandum of Understanding, which is not binding.  The Memorandum of Understanding must be reduced to a written legal Stipulation of Settlement containing all of the legal provisions necessary to be enforceable in New York. 

Divorce mediation works when both parties want to resolve their marital issues without the expense of litigation and they believe that they can work together with a mediator rather than retain separate attorneys.

Divorce mediation is not an option in the following situations:

  • if you need the protections of the Court system, including an Order of Protection or a Temporary Restraining Order
  • if there has been domestic violence or domestic abuse and there are safety issues
  • if there are  control or intimidation issues
  • if there have been threats of suicide
  • if you or your spouse intend to contest the grounds for divorce
  • if you or your spouse are unwilling to compromise on one or more of your issues
  • if you or your spouse require legal advice with regard to child support, custody, visitation, maintenance, and/or equitable distribution
  • if the family situation involves child abuse or neglect
  • if your spouse has threatened to abscond with your child(ren)
  • if your spouse has or has threatened to terminate your financial support, credit cards, or utilities at the marital residence
  • if you and your spouse are incapable of speaking in a civil manner and discussing your divorce issues

UNCONTESTED DIVORCE

An uncontested divorce is reached by a settlement agreement between the parties.  The terms of the divorce are agreed upon by the parties rather than imposed upon them by the Court.  By agreeing upon the terms of their divorce, the parties are able to maintain control of their own lives and are not forced to live with an arrangement directed by a Judge.

According to the Ethical Rules, an attorney may only represent one party to a divorce action.  The attorney is retained by one of the parties and can only represent and provide legal advice to their client in the negotiations.

The first step in obtaining an uncontested divorce is the negotiation and preparation of an agreement.

The parties must first reach an agreement about which party will be obtaining the divorce and on what grounds.  The spouse who has agreed to be "at fault" does not have to admit any of the allegations listed in the papers.  Rather, that spouse simply agrees not to submit an Answer to the allegations in the Complaint.

The Stipulation of Settlement must address all of the issues that are releavant to the parties' divorce, including the division of real and personal property, responsibility for debts, child support, maintenance, custody, visitation, health insurance and tax issues.

The parties commence a divorce action, execute a binding Stipulation of Settlement, and file the Stipulation of Settlement and other Uncontested divorce papers with the Court.  The Judge will sign the Judgment of Divorce without requiring the parties to appear before the Court for trial.  The terms of the parties' Stipulation of Settlement will be incorporated in the Judgmetn of Divorce and will thus become an Order of the Court.

Typically, an uncontested divorce is the least expensive way to obtain a divorce.

The process works well for parties who are relatively amicable.