United States: Divorce - Questions Most Frequently Asked By Clients

When it comes to divorce and family law issues, each client’s situation is unique. Despite the diversity of client’s needs, there are many commonly asked questions that arise when considering whether or not to pursue a divorce and/or retain an attorney. Some of those questions are set forth below.

A. No. This would be a conflict of interest. Each spouse should have his or her own attorney to review the settlement proposal. A spouse may choose not to be represented by counsel, but this is not recommended. Because of the nature of the issues at stake, especially when children are involved, you should always consult with your own attorney.

A. Once you agree to retain an attorney, you will be required to sign a retainer agreement confirming the fee arrangement. Whether or not a divorce becomes expensive really depends upon the parties. Where the parties can agree on the essential issues, a divorce can be relatively inexpensive. In those cases where every issue is a problem and must be litigated, the process becomes time consuming and, thus, expensive.

A. The issues that will have to be resolved will vary depending upon your individual circumstances. Generally, however, the issues include child support, custody, visitation, health insurance, life insurance, a division of marital assets and debts, and spousal support.

A. Basic child support is made by the non-custodial parent to the custodial parent. The amount is determined by statute and is generally calculated by multiplying gross income, (minus certain deductions) by a percentage rate that corresponds to the number of children involved. For example, the percentage is 17% for one child, 25% for two children, 29% for three children and so on. In addition to basic child support, the non-custodial parent may also be required to pay a percentage of childcare expenses and uninsured health related expenses for the children.

A. As part of the divorce there must be an equitable distribution of marital property that consists of those assets acquired from the date of the marriage forward. Marital property commonly includes such things as the marital home, bank accounts, stock portfolio, IRA, pension, and 401K plan. An asset acquired during the marriage may be marital property even if it is held in the name of only one spouse. This situation often arises where the husband and wife purchased a home during their marriage but the deed is in the husband’s name only. There are occasions where an asset acquired during the marriage may be classified as separate property, not subject to equitable distribution. Some examples of separate assets include assets owned before the marriage, family gifts, an inheritance and the proceeds of certain lawsuits.

A. If you do not agree to a divorce, you have the right to oppose the divorce. This is generally done by contesting the grounds which your spouse claims entitles him/her to a divorce. The grounds for divorce in New York are cruel and inhuman treatment of a spouse, abandonment of a spouse for one year or more and adultery.

A. No. New York does not recognize irreconcilable differences as grounds for divorce. To obtain a divorce in New York, a person must prove one of the grounds listed above. An exception to the foregoing is the ground of having lived apart for at least one year in accordance with a written separation agreement.