Patricia Fersch, a seasoned practitioner in matrimonial and family law with three decades of experience in New York City, offers invaluable perspectives on divorce proceedings. In this interview, she delves into crucial considerations such as the necessity of legal representation, types of divorce in New York, the divorce process timeline, mediation as an option, child support and custody arrangements, property division, and the pitfalls of self-representation.
I am on good terms with my soon-to-be ex-spouse. Why should I consider a divorce attorney?
Being on good terms is certainly helpful, but not always. The issues in divorce can be complex, and a lot depends on who controls the financial information. Being on good terms can also be subjective “so long as you go along with their wishes.” If your divorce is being submitted in New York, the papers you need to submit are difficult for even attorneys to submit correctly, and mistakes result in rejections by the clerks. Finally, you need to be sure that you are being protected. Minimally, you should speak with an attorney for a consultation.
What are the types of divorce a person can file in NY?
In New York, you can legally file for divorce, citing various grounds, with the most common being irretrievable breakdown for 6 months. You can also file for an annulment or legal separation.
What are the statutory grounds for a fault-based divorce?
Once New York enacted the “no fault” grounds of irretrievable breakdown for 6 months in October 2010, most divorces are brought on the grounds of irretrievable breakdown however, the other grounds are still available, which are: cruel and inhuman treatment, abandonment for one year or more, confinement in prison for three or more consecutive years from the date of the marriage, adultery, living apart for one year or more via a judgment of separation, living apart for one year or more via a separation agreement, and irretrievable breakdown of the marriage for 6 months.
How long does the divorce process take and how and what should I expect along the way?
The process can be time-consuming and daunting depending on the number of issues to be resolved and how complicated the issues are. It also depends on whether every issue is contested or whether you and your spouse are able to work some issues out. You may be able to resolve custody but not division of property. There may be an issue as to the amount of child support to be paid. A divorce can be as quick as six months or as time-consuming as years.
Is mediation a realistic option and how does it work?
Mediation is always an excellent option provided that the parties are similarly situated and there is no domestic violence or imbalance of power. Mediation also requires the parties to individually retain counsel as the mediator cannot explain to either party what their rights are; only retained counsel can do so.
How is child support and custody established after divorce?
Post-judgment custody litigation requires that the party seeking the modification of a custody agreement must show a “substantial change in circumstances”, a difficult burden to meet. If they meet that burden, they must show that the modification is in the child’s best interest. To modify child support, there are three bases: three years have passed since entering into the child support agreement or the order was entered, either party’s income has changed by 15% (up or down) or there has been a substantial change in circumstances. Modifications are costly and difficult so divorcing parties should try to anticipate all situations until the child is 18 for custody and 21 for child support to avoid post judgement litigation.
How is property ownership resolved during divorce?
New York is an “equitable distribution” state. All property acquired during the marriage no matter to whom titled if purchased with marital funds (income earned during the marriage) is marital property. Once marital property is identified, the next part of the legal analysis is each party’s contribution to the acquisition of the property. Homemaking duties and childcare are considered contributions to the acquisition of marital property. Generally, however, marriage is considered an economic partnership, and property is divided equally.
Where can it really go wrong if I decide to represent myself during divorce?
Pro se litigants are expected to behave and be knowledgeable of courtroom procedure and, if the case goes to trial, the rules of evidence. Divorce is emotional. Courts want lawyers to keep their emotions out of the courtroom. This is very difficult when a litigant is pro se. I do not recommend it. Litigants often make statements that divulge underlying motives or negative issues that a judge should not hear. They also make costly mistakes. A pro se litigant failed to file an Answer to the husband’s Complaint and make a claim for child support. At trial she sought child support arrears but it was denied because she had never asked for it-a very costly mistake.
ABOUT: My name is Patricia Fersch and I am the founding partner of Fersch LLC. I have been practicing matrimonial and family law in the State of New York, specifically in New York City for 30 years. I work with three other attorneys and we collaborate with each other on most cases.
11 Broadway, Suite 550 New York, New York 10004
Tel: (212) 422-2660
Fax: (212) 422-2666
Published by: www.lawyer-monthly.com
