Question: Do I need to be separated for one year in order to get a Divorce? If I have been separated for a year, am I divorced?

These are some of the most commonly asked questions I receive.  The answers are:  No, you do not need to be separated for any period of time in order to obtain a Judgment of Divorce.  In order to obtain a Divorce Judgment, at some point, one person will need to file an action for Divorce, dissolving the marriage and seeking ancillary relief.  In order to file a divorce action, the plaintiff must allege grounds for divorce.  By far the most common grounds for divorce is DRL Section 170(7), Irretrievable Breakdown of the Marriage.  This is our equivalent of what most people think of as "Irreconcilable Differences."  The plaintiff merely must allege that the mariage has broken down irretrievably for a period of 6 months or more.  No further grounds need be alleged.

Followup question:  if married people have been separated for more than a year, are they automatically divorced?  No.  Moreover, being separated for a year is not grounds for divorce, being separated for a year and living separate and apart pursuant to a validly executed Separation Agreement is grounds for divorce.  However, a separated couple could file for divorce using DRL Section 170(7), Irretrievable Breakdown of the Marriage.

Juliana LoBiondo
www.LoBiondoLaw.com

Is Mediation right for me?

WHAT IS “FAMILY MEDIATION”?

Mrs. LoBiondo is a trained mediator, starting with Mediation of Small Claims matters in Bronx Small Claims Court in 1990, as well as a Family Law Attorney with over 23 years experience in the field. “I highly recommend that couples considering divorce or separation consider whether Mediation is right for them. This process keeps the family out of court, results in a written agreement that both parties crafted, and takes less of a financial and emotional toll on the family unit than the traditional divorce through litigation model.”

WHAT IS THE PROCESS?

The first step is to determine that mediation is right for you. Contact the office to set up a free initial consultation.

Second, we will schedule a full consultation. Mrs. LoBiondo meets with the parties. There are no other attorney involved in the process. During this full consultation, Mrs. Lo will provide a framework for the process and provide answers to basic questions. If both parties agree that mediation is the right process for them, the Mediation process will begin with the next session.

Mrs. Lo will then schedule the proper number of sessions to achieve a written settlement agreement. The parties pay per Mediation session, with final payment constituting the fee for the written agreement.

HOW DOES THIS TIE IN WITH SEPARATION OR DIVORCE?

The final agreement constitutes a valid written separation agreement, recognized by New York State Law. The agreement can easily be converted into a Judgment of Divorce, with the parties either using the Uncontested Divorce packet provided by New York State online for free and paying the necessary filing fees; or the parties may wish to retain an attorney to convert the separation agreement into a Judgment of Divorce.

Call today to schedule your free initial Mediation consultation (845) 569-7600

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The statements found in this article are intended for general information only and should not be construed as "legal advice." In order to best protect your rights, it is important that you contact this office immediately.

How to file Uncontested Divorce Papers in NYS without an Attorney

CAN MY SPOUSE AND I FILE UNCONTESTED DIVORCE PAPERS OURSELVES?

Yes.  You can.  It is difficult, but certainly not impossible.

NYS puts the Uncontested Divorce Package online, along with a booklet explaining how to do it.  You will need to read the booklet very carefully and pay very close attention to it.  I would read the booklet once to understand it, then read it again, highlighting with a yellow highlighter what you need to do.  This packet works best for people who have already been separated for a while and have already separated their finances.  It is also easier to use these forms where there are no children of the marriage, your children are grown, or you have already worked these matters out in Family Court with an order of custody and visitation as well as a child support order.  Here is the link to the Uncontested Divorce Forms and Instruction Booklet.  Remember, that unless you qualify for and make application for "in pauperis" status, you will need to write checks out to your local County Clerk's office for various filing fees, starting with the Index number application.  Here is the link:  http://www.nycourts.gov/divorce/forms.shtml

Why seeing a Divorce Attorney to "save" your marriage always backfires

In 23 years of practice, I cannot tell you how many times people have come to my office and said, "Oh, I don't really want a divorce, I'm just coming here to scare my spouse, then he/she will see the light and come running back to me."  I'm paraphrasing, but you get the idea.  This never works.  If anything, the client finds out their spouse couldn't be more delighted that they went to a divorce attorney.  Now the other person may stop marriage counseling, stop working on the marriage, and maybe shift the cost of the divorce filing fees.

As a rule, I will not meet with anyone who is in marriage counseling.  If you're serious about saving your marriage, do whatever it is that must be done, but do NOT think that coming home with the business card of a divorce attorney is going to scare your spouse.

That almost always ends up backfiring.

If you need to call an attorney to find out your rights for divorce or separation purposes, then by all means, do so.  But ONLY if you are really serious about moving in that direction.  Until then, leave it in the hands of the marriage counselor.

www.LoBiondoLaw.com