Divorce Process at a Glance

Faith Miller Managing Partner at Miller Zeiderman LLP, authors the latest article for her blog. Read the full article below.

Divorce Process at a Glance


Some divorce cases resolve in less than a year; other cases can last longer. The timeframe of your divorce depends on the specifics of your case. Factors that lengthen the timeline include:

·      Complex finances

·      Complicated division of property (equitable distribution)

·      Contested custody of children

·      Child support

·      Access schedules

·      Spousal support

·      Mental health or addiction issues

First Six Steps

Contemplating divorce, or inching toward it, is itself a huge step. To help you on your journey, here’s a step-by-step preview of the early stages: 

1.    Contact an experienced attorney today to schedule a Consultation. If you reach out to the firm by email, an attorney or paralegal will call you to gather preliminary details before scheduling the consultation. These details include:

·      Your and your spouse’s names. This will allow us to do a conflict check before the Consultation.

·      Residency requirement. Either you or your spouse must have been living in New York State (NYS) continuously for at least two years before the divorce case is started or one of you must have lived in NYS continuously for at least one year before the divorce case and you got married in NYS or the grounds for divorce happened here.

·      The day/time that works for you for the Consultation. Faith has offices in both Westchester County and NYC and will meet with you at your desired location.

2.    Gather your family’s financial records. Make copies of:

·      3 years of tax returns

·      year of credit card statements

·      1 year of statements for the bank account(s) from which all expenses are paid

·      A current statement for all of your assets and liabilities – all bank, investment, retirement accounts and the like as well as loan statements

·      Any documents supporting a separate property claim (assets you had before the marriage, e.g. an inheritance, etc.)

Take note: You will need all of the above documents once you decide to retain an attorney. Even though you don’t need them in time for the Consultation, it helps to have an early sense of your family’s financial position prior to meeting with your attorney. 

3.    Meet for the Consultation. The consultation generally lasts an hour and will answer your questions and cover everything you need to know and plan. Goals of the Consultation include discussing/deciding:

·      Getting ready to file for divorce. All divorces in New York are now filed under no-fault, which means an irretrievable breakdown in the relationship for a period of at least 6 months.

·      An uncontested versus a contested divorce. If the parties have terms on which they agree, and we draft a formal agreement and the papers to submit to obtain a divorce, that’s considered an uncontested divorce. Even though you and your spouse will not appear in court, the agreement may be extensively and even aggressively negotiated.

If you request the court’s assistance settling a particular issue or set of issues, that’s considered a contested divorce. It involves filing a Request for Judicial Intervention, which changes the divorce matter from uncontested to contested.

·      Joint marital property distribution. This is determining your and your spouse’s assets & debts, and whether they were acquired jointly or are one party’s separate property.

·      Spousal support. If requested by either spouse, New York State law has a guideline formula for setting spousal support for incomes below $192,000; we evaluate deviating from this formula where appropriate.

Sometimes in lieu of spousal support, or “maintenance,” one party may receive a lump sum, tax-deductible payment as part of the settlement. We will discuss your options.

·      Child custody issues, visitation, and child support. What is in the “best interests” of your children and what does “best interests” mean? Custody is often separated from child support when negotiating a settlement.  NYS law has a guideline formula for determining basic child support for incomes below $154,000.

We often deviate from this formula, depending on the parties’ incomes. Additionally, we review your outline of specific issues and events that you believe impact custody or access.

If you have specific concerns about abuse, you should get before the court as soon as possible to secure an order of protection. If your spouse’s substance abuse is impacting your family, we can assist you to get a testing regimen in place quickly.

4.    Retain the attorney. Before filing for divorce, you have to retain an attorney. A firm is not retained until you have signed the agreement and paid the retainer payment.

5.    File for divorce. Your attorney will file a “Summons With Notice” or a “Summons and Complaint” with the County Clerk’s Office. This action stops the clock financially on the marriage. Both parties will also be subject to the Automatic Orders of the Court, which direct both you and your spouse to continue the “financial status quo.”

6.    Serve the Defendant. Your spouse must be served with the Summons within 120 days of filing. Your attorney will make the arrangements for you. Because you are a party to the action (divorce), you are not permitted to serve the Summons on your spouse. If your spouse has an attorney, he or she can accept service on your spouse’s behalf. Once the Defendant is served with the Summons, both you and your spouse are not subject to the Automatic Orders requiring you both to maintain the financial status quo