Experienced, Understanding Guidance Through the
Divorce Process
The Law Firm
of D'Arrigo & Cote provides legal help for
individuals and couples at all stages of divorce
- whether you are just beginning to think about
divorce or have been separated from your spouse
for some time. Our experience in Divorce Law in New York spans over 30 years,
giving us the ability to provide you with the
knowledge you need to address the legal matters
surrounding your divorce and it's many issues,
including:
We work hard
to help you achieve the positive results you
want and need for your divorce matters.
Whether you want to file a traditional divorce
proceeding, take advantage of New York's
No-Fault Divorce option, or are interested in
starting with a legal separation agreement, we
can advise and assist you with the option that
is most applicable to your situation.
Uncontested Divorce
Our office
is located in Liverpool, New York, however, our
matrimonial practice extends to Syracuse,
Onondaga County and generally the Central New
York area. Our lawyers are licensed to practice
in New York State, and have many years
experience in handling your divorce.
Flat Fee Schedule
An
uncontested divorce where only one spouse has an
attorney and all necessary documents are signed
by both parties without a Court appearance can
typically be addressed on a flat fee basis.
Note, all flat fees, costs and disbursements are
to be paid in advance. Please
contact us for a fee schedule that addresses
your specific circumstances.
If you and
your spouse agree on the terms of a divorce
without contested litigation, we will prepare
and file the required documents to commence and
finalize a divorce action for you at our modest
flat fee rate. In an uncontested divorce in
which only one spouse has an attorney, all
necessary documents will be signed by both
parties allowing the divorce to be finalized
without a Court appearance.
If you
already have a valid Separation Agreement
prepared by a divorce mediator, another attorney
or yourself, we can handle the conversion of
that Separation Agreement into a final divorce
decree. If you have tried to handle the divorce
action yourself, but find that you are having
difficulty getting the divorce finalized, we can
take over the process for you. If you are
thinking of handling your uncontested divorce on
your own, we suggest you first call our office
for a free initial consultation. We can save you hours of work, and
time wasted at the Court Clerk's office at a
relatively modest cost.
INITIAL CONSULTATION.
We will provide you with a free initial
consultation at our offices, to evaluate what
paperwork is required to proceed with an
uncontested divorce. To get started, you should
provide us with copies of all relevant documents
such as your marriage certificate (if available)
and in the case of divorces with children and/or
a property settlement, relevant proof of income,
health insurance, existing Family Court Orders,
existing deeds, pension information, bank
accounts and other property documentation.
Uncontested Divorce with No Children
For divorces
without children or a property settlement, it is
possible to proceed without an office visit. If
it is inconvenient for you to meet in our
office, we can provide a free initial telephone
consultation to discuss how to proceed with an
uncontested divorce. If you decide you want us
to handle your uncontested divorce, we will send
you forms to complete and the entire transaction
can be handled through the mail.
Please note
that the offer of a free initial consultation
does not extend to reviewing documents that your
spouse has arranged to have drawn up for an
uncontested divorce. There would be a separate
consultation fee for reviewing such documents.
Uncontested Divorce with Children
If you have
children, New York State law requires a written
agreement (sometimes referred to as an
"Opting-Out Agreement") which must contain certain mandatory
provisions for custody of the children (either
sole or joint), visitation or access to the
children by each party, health insurance for the
children, and child support. D'Arrigo & Cote
will prepare such an agreement for you which
will address all of the provisions required for
you to obtain an uncontested divorce for a
modest flat fee.
Separation and Opting-Out Agreements
If you and
your spouse prefer to become legally separated
pursuant to a written Separation and Opting-out
Agreement, which can be used for a conversion
divorce one year later, we can prepare a
Separation and Opting Out Agreement for $1,500,
plus the County Clerk's filing fee ($5.00) and
the cost of obtaining a certified copy of the
agreement once it has been filed with the County
Clerk. The County Clerk requires that an index
number be purchased at the time of the filing of
the Separation Agreement. The cost of the index
number is $210.00.
New York State Law
requires that child support be based on a
percentage of the parties' annual income. The
annual income is generally the gross income
minus FICA (Federal and State Income taxes are
not deducted from the gross income to determine
child support) and New York City Income Tax (if
applicable). The current percentages for
calculating child support obligations are: one
child 17%; two children 25%; three children 29%;
four children 31%; five or more children 35%.
The parties can agree to a higher or lower
amount, but a specific reason for the deviation
must be included in the written agreement and it
is subject to the Court's approval.
Child Support
Under
current New York State Law, child support
obligations continue until the child reaches the
age of 21 years, or is sooner emancipated. If
daycare is required for the custodial parent to
attend employment or an educational program
which will be used to obtain employment, the
agreement must also provide for the sharing of
the daycare costs. The cost of the daycare would
be shared on a basis determined by each party's
percentage of the total income of both parents.
Under
current New York State Law, the party receiving
the child support has the right to receive the
child support through the party's County Office
of Child Support Enforcement. If the party
receiving child support elects to use the
services of Child Support Enforcement, the party
paying the child support would have to send the
payments to the Office of Child Support
Enforcement on a regular schedule, established
by that office. If the party receiving the child
support elects not to use the services of the
Office of Child Support Enforcement, that party
must waive this right in a written statement.
College Expenses
The issue of
the payment of college expenses for the children
should also be addressed in any written
agreement submitted to the Court. The agreement
should outline an agreement between the
divorcing parties as to their respective
responsibilities concerning the payment of
college expenses. It is not required that the
responsibility of paying for college expenses be
included in a divorce agreement, however, if it is
not provided for at the time of the divorce, you
may not be able to require your spouse to
contribute to college costs in the future.
Tax Returns
The issue of
claiming children as dependents on income tax
returns should also be addressed in a written
agreement. Under current IRS regulations, the
party who has physical custody of the children
has the exclusive right to claim the children as
tax dependents on their income tax returns. It
is common for parties in amicable divorces to
agree to split the right to claim the children
as tax dependents. You must
provide written documentation of income for both
parents. The documentation should consist of
W-2s, recent pay stubs and income tax returns.
If there are
existing Family Court Orders concerning child
support, custody or visitation, you must provide
us with a copy of such Orders.
Property Settlement
As a general
rule, under New York law, any property acquired during the marriage
is considered "Marital Property", which, with
some exceptions, must be divided between the
parties when the marriage ends. The exceptions
are generally gifts from third parties to only
one spouse, inherited property and settlements
from lawsuits that only involve one of the
spouses. Any property that a party owned prior
to the marriage is considered to be the separate
property of that party. Any appreciation of the
value of separate property during the course of
the marriage which can be attributed to the
efforts of both spouses may also be considered
"Marital Property" subject to division between
the parties. "Marital Property" may also include
pension rights, the value of businesses and the
value of professional licenses and degrees
acquired during the marriage. In order to
properly determine the value of "Marital
Property" expert appraisals from pension
actuaries, real estate appraisers and
accountants should be employed. Under current
New York State Law, any "Marital Property" is to
be divided under the term "Equitable
Distribution".
If you have
significant "Marital Property" such as real
estate and pensions, you would be making a very
serious mistake in not having the disposition of
that property addressed in a written agreement.
A written property settlement that it is
incorporated in the divorce process to divide
property is known as a Stipulation of Settlement
or sometimes a Separation Agreement. Note, if
there are significant assets in a pension or
401(k) plan, you may need to have separate
qualified domestic relations order prepared to
address the division of such assets, at an
additional charge.
If you and your spouse cannot easily agree as to
what each party should receive under "Equitable
Distribution" then you may wish to proceed with
separate counsel on a contested basis and our
services may not be appropriate for you.
However, if you can agree as to what your
property is worth and how it is to be divided,
we can incorporate that agreement in a property
settlement agreement as part of your divorce.
If you
already have a property settlement agreement
through the services of a divorce mediator, we
can also use that agreement to finalize your
divorce. The property settlement agreement
should also address such items as credit card
debt, car loans, title to cars, life insurance,
security deposits and the actual division of
personal property such as furniture. If you have
credit cards or a car loan for which both
spouses are liable and you do not have a written
agreement dividing up the responsibility for
those debts, you may not have legal recourse if
one party stops paying. If you are driving a car
titled in your spouse's name and you do not have
a written agreement about the transfer of title,
you may have no legal recourse if your spouse
refuses to transfer title at a previously agreed
point in time. If you and your spouse are on the
lease to an apartment, you should have a written
agreement as to who will have the right to
reside in the apartment after the divorce, who
will pay the rent and who is entitled to the
security deposit. The small additional extra
cost in having a divorce with a property
settlement drawn up may be appropriate for the
extra protection it provides even where there
are not major property items such as real estate
or pensions to be divided.
Grounds for Divorce in New York State
In order to
commence an action for divorce in New York
State, a spouse has to be able to allege one of
the statutory grounds for divorce. The current
grounds for divorce in New York are:
Irretrievable breakdown of the marriage.
This is New York's no fault divorce. One
party has to state that the marriage has
irretrievably broken down for a period of six
months. All financial issues and custody and
visitation has to be settled before the divorce
will be granted.
Abandonment for one or more years.
This can include the actual act of one spouse
leaving the other for a period of more than one
year or the refusal of one spouse to have sexual
relations with the other for more than one year
(constructive abandonment). Under the grounds of
constructive abandonment a spouse can be
abandoned by the other even though they still
reside in the same residence during the period
of abandonment. The spouse who retains our
services has to be the spouse who was abandoned
by the other. We cannot commence a divorce
action for the spouse who abandoned the other.
Living
separate and apart for one or more years
pursuant to a written separation agreement.
The divorce action can be commenced by
either party after one year from the date the
separation agreement was signed. A divorce
action can also be brought if the parties have
lived separate and apart for one or more years
pursuant to a judicial decree of separation. In
order to obtain a judicial decree of separation,
a party has to commence a court action on one of
the statutory grounds for separation, which are
similar to the grounds for a divorce.
Cruel and
inhuman treatment.
This requires a continuous course of conduct
by one spouse against the other that so
endangers the physical and mental well being of
the other spouse as to make it improper for the
spouses to live together. In order to obtain a
divorce on the grounds of cruel and inhuman
treatment there has to be a detailed list of the
cruel and inhuman acts in the divorce documents.
The acts of cruelty cannot be more than five
years old. The allegations that are needed for
the divorce action to be successful often make
it difficult for the other spouse to consent to
an uncontested divorce.
Adultery.
This is rarely used because even in an
uncontested divorce action, there is a
requirement that the testimony of an independent
third party be submitted.
Confinement in prison for three or more years.
If one spouse is in prison for three or more
years, the other spouse can commence a divorce
action on that basis. The period of imprisonment
has to commence after the date of the marriage.
If You Cannot Locate Your Spouse
If you
cannot locate your spouse, you may still be able
to obtain an uncontested divorce from your
spouse. In order to proceed with the divorce
action under such circumstances, you have to
obtain a Court Order allowing you to serve your
spouse with a copy of the Summons by publishing
the Summons in a newspaper once per week for
three consecutive weeks. The Court will require
proof that you and your attorney have done
everything possible to locate your spouse before
the Court will grant permission to serve your
spouse by publication. These steps include
contacting any know relatives or friends of your
spouse, doing an internet and telephone book
search and contacting various agencies such as
the post office, the branches of the military,
the Board of Elections, Social Security and the
Department of Motor Vehicles. The newspaper in
which the Summons will be required to be
published will be chosen by the Court. The cost
of publishing a divorce Summons in a newspaper
once per week for three consecutive weeks
usually ranges between $800.00 to $2,700.00,
depending on in which County the publication is
required. If your spouse does not answer the
Summons within 50 days of the date of the last
publication, you can proceed to apply for an
uncontested divorce.
Contact Us
To arrange a
confidential meeting to discuss your particular
divorce matter, contact our offices by e-mail or call (315) 451-2383.
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