What You Need to Know About Divorce in Nassau County
Nobody expects when they say the words “I do” that their marriage will end in a divorce. Unfortunately, this is the case with many people across the United States and the world, and if you are currently going through a divorce, or are about to go through one, you most likely have several pressing issues on your mind. That is why The Pollack Law Firm, P.C. has compiled this guide of essentially everything you need to know about divorce in Nassau County and New York State. Please continue reading and contact our knowledgeable Nassau County divorce attorney today to learn more about divorce and how our firm can help you through the legal process going forward. Here are some of the questions you may have:
What should I do to prepare for a divorce?
Rather obviously, divorce is a major step in your life, and because of this, there are several things you should do to ensure the process goes as smoothly as possible. Some of the most important things you can do to prepare for a divorce in Nassau County are as follows:
- First, you should ensure you are ready to make the move. Many people rush into the process without considering all their options first. Ask yourself, “can I still work things out?” If not, and you believe you are ready, you can then begin planning with a clear head.
- You should start gathering various documents necessary to complete the divorce process. For example, you will need to locate your W-2s, credit card statements, pay stubs, bank statements, information about any property you and your spouse own, three years of business tax returns (if you are a business owner) a statement regarding any retirement assets you or your spouse have, a recent statement regarding all stock or investment portfolios owned, a copy of the deed to your marital residence (if you own a home) and more.
- Finally, you should account for the fact that divorce is a document-heavy process, which means you have to stay organized at all times and ensure you have a firm understanding of your finances by creating a financial plan for when you are no longer married and presumably have only one paycheck to support yourself. This means determining all weekly or monthly bills, how much you spend on food, and any other expenses you foresee. As long as you have all the proper documentation gathered and a financial plan in place, you should be ready to proceed with your divorce.
What is the difference between a contested and an uncontested divorce?
There are two primary types of divorce: contested divorce and uncontested divorce. Simply put, if you are in an uncontested divorce, it means that you and your spouse can both agree on its terms, including child custody, alimony, who gets to keep the house, and any other aspect of your lives that may be affected by the divorce. That being said, contested divorces, for obvious reasons, are more common than uncontested divorces. If you are in a contested divorce, it means you and your spouse cannot agree on your divorce terms, and that your divorce will most likely enter the litigation process.
What is the divorce process like?
There are several steps in the divorce process. First, you and your spouse will have to satisfy the residency requirements for a divorce in New York State. This means that you must demonstrate that you and/or your spouse have lived in NYS for at least 2 years. This establishes jurisdiction. Once you fulfill the residency requirement, you will have to cite grounds for your divorce, which can include an irretrievable breakdown for a period of 6 months or more prior to the commencement of the action for divorce, adultery, abandonment, or confinement in prison or a mental hospital for 3 or more consecutive years. That being said, it is well worth noting that New York is a “no-fault” state, which means that you do not have to prove fault grounds; instead, you only have to cite them.
To begin the divorce process, you will file a Complaint for Divorce, wherein you will cite the grounds for divorce and any ancillary relief that you may need, which can include child support, child custody, spousal maintenance, and legal fees, among others. Once the complaint is filed, a third party who is over the age of 18 will have to serve the divorce papers to the defendant. The defendant can either admit or deny each allegation within the complaint. If your spouse wishes, he or she can defend him/herself and file a counter-suit. If you wish to fight that counter-claim, you may file a verified reply. Generally, our firm recommends filing a no-fault divorce, as making accusations of adultery, abandonment, and otherwise frequently results in a far more complicated, drawn-out litigation experience. Furthermore, these accusations seldom have an impact on the outcome of your divorce, and will usually not work in your favor.
From here, you will enter the discovery process, which, traditionally speaking, is the longest part of the process. During discovery, the court requests documents regarding you and your spouse’s financial situation. The courts will need to look at net worth statements, marital property, and more. You will then enter the Compliance Conference, where it will be made clear that you and your spouse have everything you need to commence with a trial.
Any pretrial motions that must be filed happen after the Compliance Conference. Generally, “pre-trial” motions are for issues that cannot wait for the trial to end, such as:
- Temporary custody
- Temporary child support
- Compliance with discovery demands
- Court-related fees
You should also note that there are certain trial motions and post-judgment motions that request the courts to act on a certain issue. Therefore, when the trial begins, the plaintiff can:
- Call witnesses
- Submit relevant documents
From here, the defendant can cross-examine any witness and follow suit by testifying, calling witnesses, and submitting relevant documents. Eventually, your divorce will be finalized a Judgment of Divorce. This document includes all orders from the court, such as spousal maintenance/alimony, child custody, child support, and property distribution.
Should I file for divorce before my spouse does?
One of the main advantages of filing first is preparedness. For example, if you file first, you will have already researched the best attorney for you. Furthermore, if your spouse springs a divorce on you, you may not have all the necessary documentation gathered, or a financial plan in place. Lastly, if you live in Nassau County and your spouse lives in another state and he/she files first, you may be required to travel to and from that state, multiple times, to carry out divorce proceedings. This can interrupt your job, the time you spend with your family, and many other aspects of your life. Therefore, by filing first, you can do so on your terms, thereby potentially saving you both time and money in the long run.
Will I lose my house in a divorce?
When couples are in a contested divorce and enter litigation, their marital property will frequently fall into the equitable distribution process. Marital property is basically all property accumulated during the marriage. Unfortunately, “equitable” does not mean “equal.” Instead, it means something closer to what the courts deem fair. Therefore, many of your assets, including your home, your car, pension, retirement plan, and more, may be at stake, especially if you are the financially-independent spouse. Nassau County courts will consider various factors, including you and your spouse’s age, your income, the value of your property, and any other factor they deem relevant to your divorce.
What is a high net worth divorce?
If you and your spouse are getting divorced and have combined monies and assets valued more than $1 million, you are in a high net worth divorce. Though these divorces still have to deal with “standard” divorce issues, like child custody, child support, alimony, and more, they oftentimes become even more financially complex. Simply put, the more assets, stocks, multiple properties, debts, high profile possessions and more that you have, the more complicated your divorce will be. Furthermore, if you or your spouse have a professional practice or business, this will also factor in as well. The bottom line is that if you are in a high net worth divorce, you have a lot on the line, which is why you need an experienced Nassau County divorce attorney on your side who is ready to fight to protect your hard-earned assets.
What is divorce mediation?
Many couples start out in a contested divorce. Fortunately, in many cases, you can turn that contested divorce into an uncontested divorce via the process of divorce mediation. Essentially, a divorce mediator is an unbiased, neutral third party whose primary function is to sit you and your spouse down, outside of the courtroom setting, to negotiate terms of your divorce that work for you both. Litigation in a courtroom setting is often a hostile process, and, generally speaking, does not allow for much compromise, and the terms of your divorce will ultimately be decided by a judge. By working with a divorce mediator, the hope is that you and your spouse will feel your voices are heard and that you will, therefore, accept the outcome of your divorce and be able to move on with your lives. You should also note that by hiring a Nassau County divorce mediator, since your divorce is out of the courtroom setting, it will not become part of the public record, and that you will usually save both time and money by avoiding litigation.
How does child custody work in NY?
Child custody is perhaps the most hotly contested divorce-related issue, as both parents do not want to go without raising their child. There are two primary types of child custody: Joint and sole custody. Joint custody is when both parents share custody, and sole custody is when only one parent has custody. Child custody can be further broken down into physical and legal custody. Physical custody refers to where the child primarily lives. Though both parents frequently want their child to reside with them, our firm encourages parents to primarily fight for legal custody. Legal custody allows a parent to have a say in what religion a child practices, where he/she attends school, the type of medical treatment the child is allowed to receive, and more. Nassau County courts will consider several things when determining child custody in New York State. They are as follows:
- Your child’s age
- Who has been the primary caregiver through the years
- The quality of each parent’s homes
- Whether it is proper for the child to remain with the primary caregiver
- Older children’s preferences and desires, as long as they are of age and maturity to decide
How is child support calculated in Nassau County?
Child support is designed to mitigate the financial impact of your divorce on your children. The New York Child Support Standards Act (CSSA) is in place to fairly distribute the financial cost of raising your child between you and your former spouse. The CSSA determines that basic child support is calculated by taking a percentage of the combined income of the parents, up to $148,000, and allocating the support between parties in proportion to each spouse’s income. These percentages are as follows:
- One child: 17%
- Two children: 25%
- Three children: 29%
- Four children: 31%
- Five or more children: No less than 35%
Generally, Nassau County courts rule that child support may only be paid until your child is 21. The courts will also consider various other factors, including the educational background and earning capacity of each parent, the income, debts, and assets of each parent, and more. As stated before, the courts’ primary concern is the well-being of your child, so they will also consider your child’s age and health, education, your child’s needs, and the cost of raising your child. Furthermore, if your child has any special needs, or wishes to pursue college/higher education, you may request a modification to continue your child support past the age of 21.
How do Nassau County courts calculate alimony?
The primary function of alimony or spousal maintenance is to continue the standard of living that was established during the marriage. The courts will follow a formula to determine alimony, wherein they will mainly analyze you and your spouse’s income, tax consequences, and marital property. The longer the duration of your marriage, generally speaking, the longer the duration of your alimony payments will be. Additionally, if one spouse has physical custody of the children, this may also impact spousal support. The age, health, and earning capacity of both spouses is also considered, and if one party had to undergo education or training and its associated costs to benefit the family, Nassau County courts will also consider that. Finally, among other things, Nassau County courts will also consider non-monetary contributions to alimony payments, such as raising the children and taking care of the house while the other spouse worked. You should note that while all these are court’s primary concerns, they will also adjust alimony payments based on any other evidence presented that warrants them to do so.
How can a prenuptial agreement protect my assets from a divorce?
In many cases, you can sign a prenuptial agreement before marriage to protect your assets from the equitable distribution process, should you ever get a divorce. Prenuptial agreements can protect premarital property, premarital assets, real estate, businesses, and even establish fidelity clauses, spousal maintenance clauses, marital real estate clauses, and more. However, for a Nassau County prenuptial agreement to be considered binding, it must meet the following requirements:
- It must be in writing
- It must be fair and just
- It must be executed voluntarily by both parties and in front of a notary
- It must include full disclosure at the time of execution
That being said, you should note that if you are someone who has already married without drafting a prenuptial agreement, you may still draft a postnuptial agreement. These agreements function essentially the same, in that they are designed to protect assets; the only primary difference is the time at which they are executed. Finally, if you and your spouse jointly own a business, you may establish a shareholder agreement to predetermine how your business will operate, should you ever get a business-owner divorce.
Can I change alimony, child support, or child custody terms after my divorce is over?
Fortunately, in many cases, the answer to this question is “yes.” Naturally, as life goes on, things change, and sometimes considerably so. That is why, in the months or years after a divorce, as long as you can prove that there has been an unforeseen, major and continuing change, Nassau County courts will consider granting you a post-judgment modification to child custody, spousal maintenance/alimony, or child support. Some examples of circumstances that may warrant a post-judgment modification can include:
- You/your former spouse has received a job promotion/demotion or has come into a large sum of money, thereby warranting an increase/decrease of child support/alimony.
- You/your former spouse has remarried or is now cohabitating with another person, warranting an increase/decrease of child support/alimony.
- Your former spouse has exposed your child to drug abuse, domestic violence, or any other type of behavior that questions his/her parental fitness, thereby warranting a change to child custody terms.
- You/your former spouse has moved or relocated far away, warranting a change in child custody terms.
- You/your former spouse/your child has contracted a serious illness, thereby warranting a change to alimony/child support terms.
We hope this guide has been helpful. Though the main intention of this guide is to inform, the truth is, it could never replace the legal assistance of a knowledgeable, compassionate, Nassau County divorce attorney. If you are ready to go through the divorce process, or have any other questions concerning any divorce or family law matters, please do not hesitate to speak with Attorney Pollack of The Pollack Law Firm, P.C. today.
Contact our experienced Nassau County firm
The Pollack Law Firm, P.C., rated Nassau County’s “BEST” divorce lawyers and proudly serving clients in Nassau and Suffolk County for more than 22 years, is always available to assist and represent parties in divorce, separation and all other matrimonial and family law matters. Contact us online or call today to schedule your complimentary case analysis: (516) 342-3575.