Divorce and Matrimonial Law Overview

Divorce and Matrimonial Law Overview

By J. Douglas Barics
Suffolk and Nassau County Divorce Lawyer

Ending a marriage is hard enough. Navigating through the divorce itself in court is often harder. To make matters worse, different counties have different rules; a divorce in Suffolk or Nassau can be very different than a divorce in Queens or Manhattan.

The divorce itself may be counter-intuitive; many people often think that the reasons why you are getting divorced carries a lot of weight. That used to be the case before 1966, but from that year to 2010 the grounds for divorce expanded, and in 2010 they were abolished altogether when New York adopted no fault divorce. Ironically, New York once led the way in the liberalizing of matrimonial law, but was the final state to adopt no fault.

To understand the practical effect of no fault, the distinction between the “cause of action” and the “ancillary relief” must be understood. The cause of action is simply whether or not the court will dissolve the marriage. Prior to no fault divorce, if the divorce was denied, the marriage would remain and the remaining issues would largely be moot. Prior to 1980, the financial issues were far simpler as well, the only financial relief the courts could grant was alimony, and only wives were entitled to it, regardless of marital fault.

Starting with the enactment of the equitable distribution law in 1980, the financial aspects of a divorce grew far more complex, and today, the issue of the divorce itself is trivial due to no fault, while significant resources and time are spent on sorting out the finances.

That means the ancillary issues are the heart of modern matrimonial law.

What is an Ancillary Issue?

An ancillary issue is an issue that cannot stand as an independent case in Supreme Court; by definition it is part of another case. Thus, there is no separate cause of action for equitable distribution; marital property can only be awarded in conjunction with a matrimonial action. However, many ancillary issues are authorized by statute to be prosecuted as a special proceeding or in Family Court.

What is a Matrimonial Action?

A matrimonial action is specifically defined by Domestic Relations Law §236B, and includes a divorce and an annulment, as well as some other specific actions, such as declaring a marriage void, a legal separation, obtaining an official recognition or non-recognition of a foreign divorce, and subject to certain limitations, a special proceeding to obtain equitable distribution of the divorce was granted outside of New York

What are the Residency Requirements?

Four of the listed matrimonial actions have residency requirements based upon New York’s policy that there must be sufficient ties to the state before the courts will grant any relief. They are (a) a divorce, (b) an annulment, (c) a separation, and (d) the declaration of a void marriage.

What are the Grounds for Divorce?

There are seven grounds for a divorce in New York. Six are fault based and the seventh is no fault. Using a fault based ground is nearly unheard of, as it does not affect the ancillary issues, is far more expensive, and even if you lose on fault your spouse can still obtain a no fault divorce.

The grounds are as follows:

• Cruel and Inhuman Treatment
• Abandonment
• Imprisonment for three or more years
• Adultery
• Living apart under a judicial separation for one year or more
• Living apart under a separation agreement for one year or more
• The irretrievable breakdown of the marriage for six months (no fault)

Once grounds are resolved, the court will then turn to the ancillary issues.

What are the Ancillary Issues?

The ancillary issues in a divorce action in New York are as follows:

• Custody & Parenting Time
• Child Support
• Maintenance
• Equitable Distribution of the Marital Property
• Counsel Fees
• Expert Fees
• Exclusive Occupancy of the Marital Home

This list is not exhaustive. Note that custody, child support and maintenance may be maintained as separate proceedings independent of a divorce.

How are the Ancillary Issues Determined?

Every issue in a divorce will be resolved. Most divorces will end in stipulations of settlement on all or some of the ancillary issues. For those issues which cannot be resolved, there will be a trial, and the court will make a determination on all unresolved issues.

What is a Marital Agreement?

A marital agreement the broad term that includes stipulation of settlements. When you settle your divorce, the terms are set by you through negotiations, as opposed to letting a judge decide. In addition, a stipulation ends the case, as there no appeal is allowed following a stipulation.

What is a Matrimonial Appeal?

A matrimonial appeal is an appeal from your divorce judgment on any or all issues that was decided by the judge. Its not a second trial. It is where you ask an appeals court to review the trial judge’s decision and request that it be changed or reversed due to a mistake by the trial judge.

Call for a Free Phone Consultation or to Schedule a Low Cost Office Consultation

If you have have additional questions, contact our office to learn about your legal options for protecting your rights in any matrimonial action. To get your free phone consultation or to make an appointment, call (631) 864-2600. Serving clients in Suffolk, Nassau, Queens, Manhattan, Bronx, Westchester. Rockland, Orange and other surrounding counties are accepted on a case by case basis.