Queens Divorce Lawyer

Divorces can be emotionally charged and contentious, especially when negotiations around key issues such as property division, spousal support, child custody, and child support come into play. Even divorces that start amicably can quickly become bitter as the details of these matters are hashed out. If you are in the process of a divorce or are contemplating divorce, to help ensure that your rights are protected throughout the process, it is critical to consult with an experienced Queens divorce lawyer who can help navigate the complexities of the divorce process, minimizing potential conflict and ensuring a fair resolution. Contacting a skilled lawyer early in the process can help manage both the legal and emotional aspects effectively.

Grounds for Divorce in New York

New York allows both no-fault divorces and fault-based divorces. Under New York Domestic Relations Law (DRL) § 170(7), a spouse can file for a no-fault divorce by stating that the marriage has been "irretrievably broken" for at least six months. No proof of wrongdoing is required for this type of divorce and trials are generally not permitted. The reason there is no trial with a “no fault” divorce under DRL § 170(7) is because the petition includes a sworn statement that the marriage is irretrievably broken. So, there is nothing to litigate as New York does not require evidence of the brokenness. However, all financial issues, child custody, and support arrangements must be resolved before a no-fault divorce can be finalized.

In addition to no-fault grounds, New York recognizes several fault-based grounds for divorce, which include:

1. Cruel and inhuman treatment. Divorce based on cruel and inhuman treatment in New York is governed by DRL § 170(1). This ground can be used when one spouse's behavior has endangered the physical or mental well-being of the other spouse to the point where it becomes unsafe or improper for the parties to continue living together. When there is a claim of cruel and inhuman treatment, it is up to the plaintiff to substantiate the claim. For example, in D.A. v. B.E., 2005 N.Y. Slip Op. 50281 (N.Y. Sup. Ct. 2005), the husband filed for divorce claiming cruel and inhuman treatment based on allegations that the wife did not support him in a loving way as he went through treatment for asbestosis and related illnesses. Examples that he provided included that she did not accompany him to all of his appointments, did not always ask about how his health was, and did not go with when he moved from their Howard Beach basement apartment for health reasons. The court agreed that the wife was at times unsympathetic and unsupportive, but concluded that her actions did not amount to cruel treatment and denied the plaintiff’s petition for divorce under DRL § 170(1).
2. Abandonment. Divorce on the grounds of abandonment is covered under DRL § 170(2). This ground can be used if one spouse has abandoned the other for a continuous period of at least one year.
3. Imprisonment. Under DRL § 170(3) a divorce can be sought if one spouse has been imprisoned for three or more consecutive years after the marriage. For example, Jane H., a resident of Queens, filed for divorce under DRL § 170(3) after her husband, Mark H., had been incarcerated at Rikers Island for over three consecutive years due to felony charges. His prolonged imprisonment has strained their relationship, leaving Jane financially and emotionally unsupported. With no possibility of reconciliation, Jane realized that continuing the marriage was unsustainable, as Mark’s absence and lack of contribution to the household made it impossible to maintain a partnership. She sought a divorce based on his extended imprisonment, hoping to regain her independence and move forward with her life.
4. Adultery. Divorce based on adultery is governed by DRL § 170(4). Adultery is considered a ground for divorce if one spouse can prove that the other engaged in extramarital sexual relations. For example, in L.A.S. v. P.M.M.S., 2023 N.Y. Slip Op. 50845 (N.Y. Sup. Ct. 2023), the plaintiff wife filed a petition for divorce on grounds of adultery. As evidence, she gave very specific details, including that the defendant husband met someone on Tinder and listed specific names and dates of acts of adultery.
5. Separation. Divorce on the grounds of separation is covered by two provisions: DRL § 170(5) for divorce after a judgment of separation granted by the court and DRL § 170(6) for divorce after living apart for one or more years following a written separation agreement.

Filing for Divorce in Queens

To file for divorce in Queens, either spouse must meet the residency requirements under DRL § 230. A spouse must have lived in New York continuously for at least two years, or for one year if the marriage took place in New York or both parties lived in the state during the marriage.

Divorce petitions are filed in the Supreme Court of New York, Queens County. The court that handles divorce cases in Queens is located a 88-11 Sutphin Blvd. Jamaica, NY 11435. The telephone number is (718) 298-1000. Note that while the Queens County Family Court can address issues of child support and custody, divorce itself must be filed and processed in the Supreme Court.

The legal process for divorce in Queens involves several steps:

1. Filing the Summons and Complaint – The spouse seeking divorce files a summons and complaint with the Supreme Court.
2. Serving the Other Spouse – The filing spouse must serve the summons and complaint on the other spouse, following proper service procedures under New York law.
3. Response – The other spouse has the opportunity to respond to the complaint and, if necessary, file a counterclaim.
4. Discovery – The parties exchange financial information and other relevant documents to ensure full disclosure of assets and liabilities.
5. Settlement Negotiations – Many divorce cases are resolved through negotiated settlements, preferably with the assistance of experienced Queen divorce attorneys. If the spouses agree on all issues, they can submit a settlement agreement to the court for approval.
6. Trial – Where the divorce is not a no-fault divorce, if the parties cannot reach an agreement, the case proceeds to trial, where a judge will decide the unresolved issues.
7. Judgment of Divorce – After the trial or settlement, the court issues a final judgment of divorce, which includes orders on child custody, support, spousal support, and property division.

If one spouse fails to comply with the court’s orders regarding spousal support, child support, or property division, the other spouse can seek enforcement through the court. Enforcement actions may include wage garnishment, seizure of assets, or contempt of court proceedings.

To ensure the divorce process goes as smoothly as possible, it's important to seek the assistance of an experienced Queens divorce lawyer who can guide you through complex legal steps, negotiate on your behalf during settlement discussions, and represent you if the case proceeds to trial. Even if the divorce is uncontested, having knowledgeable legal representation is critical in protecting your rights, whether it's in property division, child custody, or spousal support issues.

Spousal Support (Maintenance)

In New York, spousal support also referred to as maintenance or alimony—is intended to help the lower-earning spouse maintain economic stability after divorce. The amount and duration of spousal support are determined based on a number of factors listed in DRL § 236. These factors include:

• The income and property of each spouse, including marital assets divided in the divorce
• The length of the marriage
• The health and age of both spouses
• The earning capacity of the spouse seeking support
• Whether one spouse contributed to the education or career advancement of the other
• The standard of living during the marriage

There are two types of spousal support in New York: temporary (or pendente lite) support and post-divorce maintenance. Temporary support is awarded while the divorce is pending, and post-divorce maintenance is determined as part of the final divorce judgment. The processes for determining temporary support versus permanent are different and can be complicated. Consultation with an experienced divorce attorney serving Queens is critical.

Child Custody and Support

If the divorcing couple has children, decisions on child custody and support will be a major part of the divorce case. Child custody decisions are based on the best interests of the child. Custody can be awarded as:

• Joint custody – Both parents share decision-making responsibilities for the child.
• Sole custody – One parent has primary decision-making responsibility.

In terms of physical custody, the court may award joint physical custody or sole physical custody to one parent, with the other parent receiving visitation rights.

Child support is determined by guidelines set forth in the New York Child Support Standards Act (CSSA). The non-custodial parent is typically required to pay child support, which is calculated as a percentage of the non-custodial parent's income based on the number of children:

• 17% for one child.
• 25% for two children.
• 29% for three children.
• 31% for four children.
• 35% or more for five or more children.

For example, during their divorce in Queens, John L. and Lisa L. are negotiating child custody and support for their two children. Initially, they both agreed on joint custody, but disagreements led Lisa to seek sole custody. John is granted visitation rights and, as the non-custodial parent, is required to pay child support under the CSSA. With two children, John must pay 25% of his income. Since John earns $100,000 annually, his child support obligation amounts to $25,000 per year, or about $2,083 per month, to help cover the children's needs and ensure their financial stability.

Division of Property

New York is an equitable distribution state, which means that marital property is divided fairly, though not necessarily equally, between the spouses. Marital property includes assets acquired during the marriage, such as real estate, income, retirement accounts, and investments. Separate property, such as property acquired before the marriage or by gift or inheritance, is not subject to division.

Under DRL § 236, the court considers a number of factors when dividing marital property, including:

• The length of the marriage
• The income and property of each spouse
• The contributions of each spouse to the marriage, including as a homemaker
• The future financial needs of each spouse
• Any other factor the court deems just and proper

Note that equitable division of property also includes division of debt. The court will review the entire financial picture of the couple during the marriage and issue an order as to how the assets will be distributed and who will be responsible for any outstanding marital debt. In order for the court to be able to issue such an order, it is critical that both parties provide complete financial disclosures.

Modification of Divorce Orders

After a divorce is finalized, either spouse may seek to modify orders related to spousal support, child support, or custody if there is a substantial change in circumstances. Common reasons for modification include:

• Loss of income or job
• Health issues that affect the ability to earn income
• Relocation or a significant change in the needs of the children

Requests for modification of spousal support or child support are filed in the same court that issued the original divorce decree.

Contact Stephen Bilkis & Associates

Navigating a divorce can be a complex and emotionally challenging process, and having an experienced divorce attorney serving Queens can make a significant difference. Contact Stephen Bilkis & Associates at 800.696.9529 to schedule a free, no-obligation consultation regarding your divorce case. We can provide legal advice, represent you in negotiations or court, and help ensure that your rights and interests are protected throughout the process.

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