Zimmer, Mathiesen & Associates
Frequently Asked Questions
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How long does the divorce process take?
The length of a divorce varies in each case and depends on numerous factors including the parties to the divorce, the county the divorce is filed in, the judge, and the nature of the divorce. Uncontested divorces where both spouses agree to the divorce and are able to resolve all issues related to child custody, support, visitation, equitable distribution of assets and debts, and how all personal and real property is divided generally take between four to six months. Contested divorces generally take anywhere between six months and two years. If the parties cannot agree on issues such as custody or finances, the case will take even longer.
Can my spouse and I use the same lawyer to represent us during a divorce?
A lawyer is prohibited from representing both the wife and the husband in an action for divorce to avoid any conflict of interests that may arise. If your spouse served you with papers, you must obtain your own attorney in order to ensure all of your rights are protected. However, if you and your spouse wish to obtain a divorce through mediation, you may use the same attorney to act as a mediator in order to facilitate an agreement between both parties.
Do I need my spouse’s consent to obtain a divorce?
Under current New York law, you may seek a divorce on “no-fault” grounds which means that you may have proper grounds for divorce simply based on the fact that the marital relationship irretrievably broke down. As of October 12, 2010, you no longer need to prove that one party was at fault for the deterioration of the marriage by adultery, abandonment, cruel and inhuman treatment, or imprisonment. If your spouse does not answer the complaint after being properly served, the court may grant a divorce on default.
How is child custody determined?
Custody of a child or children may be determined either through an agreement made by both parties outside of court or through a verdict by a Supreme Court or Family Court judge after a trial on the issue. A judge will evaluate a number of factors when making the determination who will have custody of the child. The judge will look at such factors including who is primarily responsible for the child’s well being, each parents relationship with the child, the overall parenting ability of both parents, where each parent lives, and all other relevant factors. Usually the issue of child custody is presented in the context of a divorce or legal separation but also arises in circumstances where unmarried parents establish paternity.
How long does a parent have to pay child support?
In New York, parents are legally required to support their children until the age of 21. Child support is occasionally extended until the child graduates college, or attains the age of 22, whichever occurs first. A parent is no longer required to pay child support for a child under the age of 21 who is emancipated. Emancipation may occur if the child becomes married, is self-supporting, or joins the military.
Can I increase or decease my child support payments if my spouse is earning more money?
The answer depends on the facts and circumstances of your particular case. If the child support payments are made through a court collection system, you may have an automatic right to review the amount after a set period of time. If the child support payments are made directly to the spouse, you must prove your case based on the standards set forth in case law if the stipulation was signed prior to July 15, 2010. If the stipulation was executed after July 15, 2010 or if the child support award was ordered by the judge after a trial on the issue, you may seek an upward or downward modification in child support if the income of either parent changed by more than 15% or if more than three years elapsed since the date of the order or agreement.
Will I be automatically excluded from any property that is solely in my spouses’ name?
No, you are not automatically excluded from property that is only in your spouses’ name. The share of the property you will receive is dependant on whether the property is classified as separate or marital as well as all of the other factors the court uses to determine equitable distribution.
How do I obtain an annulment?
An annulment is different from a divorce because an annulment legally nullifies the marriage, making it as if it never existed. Domestic Relations Law §140 provides for six different grounds where an annulment may be obtained. The following grounds may be used to obtain an annulment: a marriage that was entered into was based on fraud, one partner entered into the marriage because of duress or pressure from their spouse, parties who married were under the age of 18, one of the spouses is unable to understand the nature, consequence or effect of the marriage due to mental incapacity, after the marriage, one of the parties becomes incurably insane for at least five years, or if either spouse was incurably unable to have intercourse at the time of marriage.
How does equitable distribution affect my property?
All property acquired and income earned during a marriage is subject to equitable distribution in New York. Equitable distribution is the process of dividing property acquired by or owned by the parties upon the termination of the marriage. The courts will separate what property is considered separate property and what is marital property. Separate property is property acquired before the married or property that is inherited by one spouse. Your spouse does not have any right to your separate property and all separate property will remain yours even after the divorce. Marital property is property acquired during the marriage and is distributed equitably between both parties.
What do I need to bring to the consultation?
If you have already been served with divorce papers or have your file from an attorney who was previously representing you in your divorce, you should bring these papers with you to the free consultation. You may also want to write down any questions you may have prior to consultation appointment and bring it with you so that you may have all of your questions answered in the initial consultation.
Do I need an attorney for my divorce or family court case?
It is strongly advised to obtain an attorney for your divorce or family court case. It is important to understand that divorce and family law cases are very complex and a great deal is on the line. Without an attorney to represent you and protect your interests, you may be at risk of losing custody of your children or become bound to an unfair financial arrangement. An attorney will guide you through the process, ensure that the divorce or family court case follows the proper legal procedure, and assist you in obtaining a positive resolution to your legal matter. If the divorce is uncontested, and the parties resolved all child custody and financial issues, the parties may fill out and submit the Uncontested Divorce Packet to the court, but even in these cases it is highly recommended that an attorney be consulted.
Can I fire my current divorce attorney and hire a new one?
Yes, you can. The process of changing attorneys is simple and may be done at any point during the divorce process. If you are unsatisfied with the attorney who is currently representing you, contact us for a free consultation. Our experienced and compassionate divorce attorneys have worked exclusively in the divorce and family law area for more than twenty years and many of our clients came to us after they already retained a lawyer elsewhere. If you chose to make the switch to Zimmer, Mathiesen & Associates, we will file a Consent to Change Attorney form and Notice of Appearance with the court and obtain your entire case file from your former attorney.
I was served with divorce papers. What do I do?
After you receive a Summons and Notice for Divorce, you have twenty days to respond. Although not all divorces require an attorney, it is in your best interest to consult with an attorney in order to obtain a better understanding of the divorce process. If you decide to retain an attorney, your lawyer will prepare and file all of the necessary documents with the court, communicate and negotiate with the opposing attorney, and zealously advocate on your behalf throughout the divorce to achieve a favorable outcome.
Can I obtain custody of my child even if I was never married to the mother of the child?
Yes, you can obtain custody of your child even if you were never married as long as paternity has been established. Paternity may be established through either an acknowledgment of paternity or through a petition for paternity which may be filed with the court to establish that you are in fact the father of the child. After paternity is established, you may file a petition for visitation or custody of the child or children with the court.
Can I obtain child support for my children even if no divorce action is commenced?
Yes, you may obtain a child support order without filing for a divorce.
Can my spouse be forced to help pay for the cost of college for our children?
Yes, but the party seeking financial assistance must make an application to compel the other party to pay for some of the college costs if the parties cannot reach an agreement on the issue. Generally, the college costs for the children are split by the parties on a pro-rata basis, taking into account the incomes of both spouses. The court may also place a cap on the college costs paid by both parents, usually up to the cost of attending a SUNY school.
What are the grounds for divorce?
Under New York law, there are four fault bases grounds for divorce. These fault based grounds include adultery, cruel and inhuman treatment, abandonment for one or more years, or imprisonment for three or more years. New York also has two no-fault grounds for divorce. A no-fault divorce may be obtained either through a separation agreement or court decree that is in effect for more than one year or if the marital relationship “irretrievably broke down” for a period of six months prior to the commencement of the divorce.
How long do I have to pay spousal maintenance or alimony?
The length of time that one spouse need to pay alimony, also known as maintenance or spousal support, varies depending on the particular circumstances and needs of the parties. In some cases, a spouse may receive a pendente lite award which is temporary maintenance awarded to one spouse for the duration of the divorce. A pendente lite award is based on immediate financial need of the spouse and ends once a final order of maintenance is made by the judge or when the parties enter into a final stipulation of settlement. The amount of time a spouse is required to pay maintenance after a divorce depends on the parties’ agreement or the judge’s ruling if a trial is held on the issue. Usually, a spouse is required to pay the other spouse for a certain number of years which is usually a time period equal to one third of the length of the parties marriage. Limitations may be set on spousal maintenance where maintenance will terminate if your ex-spouse remarries or lives with a person of the opposite sex with the intent of marrying him or her. In rare cases, a spouse may be ordered to pay lifetime maintenance which will only terminate upon the death of either party.
Why hire Zimmer, Mathiesen & Associates for my divorce?
Although there are many divorce and family law firms in New York state, the experienced and knowledgeable attorneys at Zimmer, Mathiesen & Associates have more than twenty-five years experience handling divorce and family law cases. This firm has extensive knowledge of current New York divorce law and has the ability to achieve a favorable outcome in your case whether it be through settlement negotiations or through a trial.
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BEST SWITCH I EVER MADE, GREAT ATTORNEY THAT PRODUCED RESULTS
I hired Mr. Zimmer about a year ago to handle my divorce case. I met with Mr. Zimmer after going through a case for two years with another attorney. At the time of my first initial consultation with Mr. Zimmer, I was immediately impressed with his knowledge on divorce matters. My previous attorney had never mentioned half the things Mr. Zimmer did that we could do for my case. I came in there with next to no money, barely being able to keep my head above water and finished a few months later feeling completely satisfied with the results. Mr. Zimmer put more effort into my case in a few months than my prior attorney did in two years!