My spouse has a lawyer for our divorce, do I need one?
Question: My wife has a lawyer and started a no fault divorce proceeding, I have a court date for next month in New York State Supreme Court, Expedited Matrimonial System in Buffalo. If she has a lawyer do I need one? I want the children to live with her, so does it even matter?
Answer: Your question depends on what you are looking for in the outcome of the divorce. First and foremost, the attorney working for your wife, is working for your wife, and will have her best interests in mind. Her attorney will not be able to help you, other than to tell you to seek another attorney’s opinion if you do not like something that is proposed to you. In addition, you will have a more difficult time with court dates and appearances, as her attorney knows the processes and procedures required.
No Fault Divorce
No fault divorce in the state of New York states that neither party is at fault, but requires that for at least six (6) months or more the parties have been separated, without any attempts of reconciliation, and at least one of the spouses’ states on the record that there are irreconcilable differences.
In order for the No Fault Divorce to be completed, dissolving the status of the marriage only, all other issues, family and marital, have to be resolved. Such issues involving separating marital property, alimony, child support, and custody of the children, have to be worked out before the final order of divorce can be ordered.
Property Distribution in New York State
Property distribution in New York State relies on hard-and-fast rules; however, there is wiggle room with most of the issues before they go to trial, allowing for a give-and-take in the negotiation process. Also included when talking about property, are tangible and intangible assets; all assets and debts owed and owing by both parties have to be distributed and shared.
Alimony and Child Support
Alimony and child support are based on a formula created from both parties’ salaries and earning potential. Many factors can change the outcome of alimony or child support; such as the previous negotiations, individual health, the overall wellbeing of the parties, and the custody arrangement of the children.
One of the biggest issues many unrepresented parities run into is custody of their children, given that it may affect other avenues of the divorce. While you stated that you want your children to stay with their mother, how would you want physical and legal custody allocated?
Physical custody is having a child physically present within the home and taking care of them on a daily basis. If one parent has sole physical custody, the other parent would be allowed visitation rights.
Visitation is time set aside just for the other parent to visit and spend time with their child. This is another area, where the attorney for your wife has a job to look out for the best interest of your wife, making sure she has all the time she wants. Her attorney’s job is not to make sure you are happy, or that you get what you want or need out of the negotiation.
A lot of individuals forget visitation is not just made up of week days and weekends, it also includes holidays, birthdays, and school breaks. All days should be negotiated. This is one area where unrepresented individuals wish they had an attorney guiding them through this process.
Legal custody is custody over the child in regards to legal, medical, and educational decisions. Most individuals never think about legal custody until it’s time for a divorce. One parent may not have an issue with one parent having complete physical custody; however, legal custody is a major battle, as to where certain lines are drawn. For example, if children play travel sports, will permission be required from both parents to allow the child to travel to Canada?
Consulting with an attorney is the best option to ensure that your interests and wishes are respected. Knowing that someone is looking out for you, and only you, provides piece of mind during a very difficult time.
Should you have additional questions or concerns, please feel to contact our firm and we would be more than happy to assist you.