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How do I start a divorce case?

July 19, 2016 Our Blog

Before starting any divorce process, it is advisable to make sure that you really want a divorce. If possible, you should consult a counselor to save your marriage. Once you start a divorce process, it is difficult to go back. Divorce is dependent on your relationship with your better half and the existing state laws in which you live. Some states may allow for legal separation while others may consider marriage as a legal entity until the court rules otherwise.

If you would like to institute divorce proceedings, the first step is to talk to your spouse. It is prudent to ask whether she or he is ready for the divorce. If you come to a common ground regarding the divorce and are willing to work together to conclude the process in an amicable manner, you should start discussing about pertinent issues. These issues include division of finances, assets and property, child support, how to tell the children about the divorce, visitation and spousal support. All the finances, assets and properties must be supported by documents. To this end, you should make sure that you have the right paperwork. Tax statements as well as records of your assets and liabilities are crucial in the divorce process.

If the you and your spouse are willing to work together towards completing the divorce process, it is less costly and time-consuming. However, in circumstances where the partners may not be willing to work together, one spouse may file a complaint for divorce. This legal document is a divorce or dissolution petition by a spouse seeking a divorce. Filling and serving of the complaint for divorce by a petitioner marks the beginning of the divorce process. Each state has stern requirements on serving legal documents. It is important that the divorce petition be served in the right manner for the divorce to proceed in a valid manner.

The complaint for divorce or divorce/dissolution petition varies from state to state. However, the contents of the petition are largely similar. It contains the name and addresses of the spouses, spouse’s children, date and place of marriage and acknowledgement that petitioner and spouse have lived in a given state or county for a specified period before filing the petition. In addition, the petition encompasses the grounds for divorce and declaration of how the petitioner would like to deal with finances, visitation, child custody, property division and other related matters.

While the process of divorce is ongoing, courts may put temporary orders in order for certain financial and family issues to be ferreted out. The temporary orders may be issued to allow for payment of spousal and child support, child visitation for non-custodial spouse and payment of different bills. Additionally, the orders may be issued pertaining to the spouse to have primary custody of the children and the spouse to live in the couple’s primary residence.

If the divorce petition is filed based on adultery or extreme cruelty by your spouse, there is no waiting period. You are free to file a complaint for divorce. In case of desertion by your spouse, you may file a complaint for divorce after a year. If you and your spouse are willing to seek divorce without any evidence of wrongdoing and fault, then as a couple, you may have an 18-month separation. This way, your complaint for divorce should state that as a couple, you have lived in various places for at least 18 consecutive months. However, living in separate rooms within the same house does not amount to legal separation because of the likelihood of reconciliation.

It is highly recommended that you seek the services of a divorce attorney, as he or she will guide you and represent you in courts. In addition, attorneys have expansive experience in divorce proceedings. This way, they will guarantee you the best possible outcome.

Contesting a divorce

When it comes to legal matters, wording is particularly important. Using the right word to describe a specific form, idea, or process is critical to ensuring the outcome you seek.

In this instance, you are asking if he can contest a divorce that was granted by default. The answer to that question is no, he can’t. However, he can petition the court and ask to vacate the default divorce judgment.

When a divorce is filed, there are three ways it can go: contested, uncontested, and default. Uncontested is when both parties agree on all the major issues. Contested is when there is at least one major issue (potentially even the decision to divorce) that the couple does not agree on. Either of these occur when one party files for the divorce and the other party answers.

A default divorce is granted when the respondent (the spouse who didn’t file) doesn’t respond. Many times, this happens after the petitioner has tried and failed to find their spouse, has notified by publication, and then been granted the divorce by default. This also means that the petitioner gets everything they asked for in the petition.

Vacating a default divorce

Sometimes the respondent had a good reason for not responding. Examples of valid reasons for not responding would be having been in an accident, being hospitalized, or a verifiable family emergency. Additionally, if he could prove that you didn’t serve him or some other reason that he wasn’t properly informed, he may have a case. If the respondent has a valid reason, he can file a motion to vacate the default divorce judgment. he would need to prove his reason for not responding.

He will also need to prove that, had he answered the initial petition, he would have provided information that might have changed the court’s mind about something that was ordered in the default divorce. In other words, he must be able to show that something you were granted in the default divorce wouldn’t have been granted to you.

When he files that motion, the judge can either agree to vacate the default judgment, or he can decide that your spouse’s reasons aren’t valid and the divorce stays final.

Is there a deadline by which he has to file the motion to vacate?

Legally, there is no deadline by which he has to file. However, the longer he waits, the less likely it is that the judge will grant his request. The sooner he files, the better it would be for his case.

What happens if his motion to vacate is granted?

If he files a motion to vacate, and it’s granted, then the two of you will be returned to the position you were in before: married with a divorce complaint filed.

Obviously, being returned to a married state may create a very sticky situation if you’ve already remarried, or are about to. This is why it can be very important to speak with an attorney to discuss your situation if you think your former spouse may file a motion to vacate a default divorce.

If you suspect that your former spouse might file a motion to vacate your default divorce, you should call a lawyer immediately to discuss the specifics of your case. A good attorney can help you figure out whether your former spouse has a valid claim, and what your next steps should be. It is very important that you do not try to deal with this on your own, because it can be much more complicated than you think.

Can the judge declare me as single before the divorce is final?

Divorce cases represent some of the most emotionally charged and legally challenging of all types of court proceedings in the state of New York, and across the nation. If you have found yourself in a divorce case, you likely routinely find yourself with questions. Indeed, once you think you have the answers you need to your questions, new ones always seem to arise.

If you are like nearly all people involved in divorce cases, you are terribly eager to bring the proceedings to an end. You strongly desire to get on with your life. As a result, you may wonder whether there is a mechanism through which the court can terminate your marriage and declare you to be a single person even before all of the issues in your marriage dissolution case fully are addressed.

The reality is that there is absolutely no way for a judge to declare you to be a single person until the final divorce decree is issued in your case. Although the court can deal with a wide array of issues once and for all before your divorce case is completely over, the one thing a judge simply cannot do is declare you a single person at any time prior to the issuance of a Final Divorce Decree.

Matters Addressed in a Divorce Case

The typical New York divorce proceeding addresses an array of different types of issues. A key set of issues of a typical New York divorce case is distributing between the spouses the assets and debts accumulated during the course of the marriage.

Sometimes the matter of assets and debts is resolved through a settlement agreement entered into between the parties to a divorce. At other times, the parties to a marriage dissolution case are unable to reach a decision regarding property and debts. In that circumstance, the court will conduct further proceedings in the case, including perhaps even a divorce trial. After receiving evidence, and hearing the arguments of the parties, the court will make a determination regarding assets and debts.

Issues surrounding minor children born during the marriage represent another category of concerns that must be addressed in a divorce case. This includes everything from child custody to parenting time or visitation to child support.

Final Divorce Decree

Once all of the major issues of a case have been resolved via a settlement agreement between the parties, or once a trial is concluded in a divorce case, the court is in a position to issue a final decree of divorce. In addition to addressing issues like financial matters and children, the court will officially or formally terminate a marriage in a final divorce decree.

The termination of the marriage via a divorce decree renders the parties single individuals. As single people, a person who just concluded a divorce case is in a position to seek out new individuals to date and develop a more intimate relationship.

As an aside, a final decree of divorce can also restore a prior name utilized by a party to a divorce. More often than not this is a woman who desires to have her maiden name restored at the conclusion of a divorce case. Although this is the common situation, any individual that has experienced an alteration to his or her name because of a marriage has the legal ability to have some sort of prior name restored with that individual

Hiring a New York Divorce Lawyer

In order to make sure that you fully understand your legal rights in a divorce case, you should consider seriously scheduling an initial consultation with a New York divorce lawyer. A New York divorce attorney will provide you with an evaluation of your case. In addition, during an initial consultation you are able to raise any questions you may have. Finally, as a matter of general practice, a New York divorce lawyer charges no fee for an initial consultation.



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