At a time in which approximately half of all American marriages end in divorce, it is imperative that those interested in dissolving their marriage understand the key issues that must be addressed when seeking to obtain a Judgment of Divorce. Regardless of whether the spouses are interested in proceeding with litigation or a form of Alternative Dispute Resolution, such as mediation or collaborative law, each spouse should consider the following key issues prior to taking any action:
1. Grounds – Although numerous bases exist to support a cause of action for divorce, many clients seek what is commonly called a "no-fault divorce," pursuing a divorce on the basis that the marriage has irretrievably broken down for a period exceeding six months. There are other grounds for divorce, however, including cruel and inhuman treatment, abandonment and adultery.
2. Equitable Distribution – At the beginning of the process, each spouse must prepare a Verified Statement of Net Worth which is an itemized list of their assets, debts and other relevant financial information. It will be necessary to determine which of these assets and debts are the separate property of each spouse and which are marital, and eventually a Declaration of Separate Property will be drafted to determine what division of marital assets will occur.
3. Dissipation – In certain cases where it has been alleged that one spouse utilized marital assets for non-marital purposes, the other spouse may make a claim of dissipation, asking that he Court provide the ‘innocent’ party with a credit towards the assets which were improperly utilized.
4. Spousal Support – In certain situations, spousal support—also called maintenance—may be awarded to a spouse who is not working or earns less than the other. The New York State Domestic Relations Law sets forth a basic formula as to how spousal support is to be calculated. Such spousal support may be awarded on an interim basis, during the divorce, temporarily after a Judgment has been rendered, or permanently.
5. Children’s Issues – If there are children from the marriage, you should consider child custody; who will be the primary custodial parent and which parent will have access? In addition, you should consider whether both parents or only one parent will have decision-making authority over the major decisions like the children’s education and health. Lastly, you must consider child support payments which will be made by the non-custodial parent.