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Serving Long Island Since 1997

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Long Island Divorce and Family Law Attorneys


Receive compassionate, personalized attention from the matrimonial and family law attorneys at our law office in Patchogue, New York. At the law office of The Law Offices of Robert W. Dapelo, Esq., PC, we pay close attention to every detail of your case and never miss an opportunity to do what is in your best interest. Contact us at (631) 654-9500 for representation by our divorce and family law attorneys. Your family is too important not to talk to us before you talk to anyone else.

Contact us  in Patchogue, New York, at (631) 654-9500
for legal representation from our family law attorneys.


Divorce and Family Law Matters 
  • Contested and Uncontested Divorces
  • Child Support
  • Spousal Support
  • Custody / Visitation
  • Separations
  • Mediation
  • Arbitration
  • Adoptions
  • Grandparent's Rights
  • Prenuptial Agreements
  • Relocations
  • Child Abuse / Neglect
  • PINS—Juvenile Law
  • Family Court
  • Orders of Protection
  • Domestic Partnerships
  • Missing Assets
  • Transferred Assets
  • Hidden Assets
  • Evaluation of Businesses
  • Hidden Businesses
  • Qualified Domestic Relations Orders (QDRO)
  • Grounds Trials
  • Custody Trials
  • Modify Separation Agreements
  • Draft Separation Agreements
  • Pre Nuptial Agreements
  • Post Nuptial agreements
  • Contempt Hearings
  • Seizure of Assets
  • Garnishments
  • School Hearings
  • IEP Hearings
  • School Suspension Hearings
  • 424-a of the Social Services Law Hearing

 

 

Grounds for Divorce in New York

The cause of action for divorce in New York state (accusations against the defendant by the plaintiff that are grounds for divorce) are limited to:

  • Cruel and inhuman treatment (Domestic Relations Law §170.1)
  • Abandonment for a continuous period of one year or more (DRL §170.2)
  • Imprisonment for more than three years subsequent to the marriage (DRL §170.3)
  • Adultery (DRL §170.4)
  • Conversion of a separation judgment (DRL §170.5)
  • Conversion of a written and acknowledged separation agreement after living separate and apart for more than one year (DRL §170.6)
  • Irretrievable breakdown of the marriage for six (6) months (DRL  §170.7)

One or more of these grounds for divorce must be used if one party to the marriage wants a divorce. The parties can also disagree over child support, custody, alimony, division of joint assets or who is going to pay legal fees. These are known as "ancillary relief" (see below) that are requested by one or both of the parties. All divorces, even by uncontested consent, must be a based on one of the six grounds stated above.

New York now has a no-fault ground for divorce--- 

  • Irretrievable breakdown of the marriage (DRL  §170.7)

 

Irretrievable Breakdown of the marriage

New York's no-fault ground for divorce. Allegations under this ground do not have to include allegations of domestic violence and repeated, extreme mental cruelty. A claim of irretrievable breakdown does not involve any wrong doing by either spouse but is a statement about the condition of the marriage. You will not need to prove that your spouse was to blame for the failure of your marriage to get a no-fault divorce based on irretrievable breakdown. A court may grant you a divorce if it finds that you and your spouse can no longer live together due to the irretrievable breakdown of your marriage for six (6) months.

 

Irretrievable Breakdown Factors

Factors considered in determining a marriage breakdown or irretrievable breakdown may include the following:

  • Conflict of personality
  • Whether there is mutual concern for the emotional needs of each other
  • Whether the marriage is characterized by financial difficulties
  • Long physical separation
  • Difference of interests
  • Resentment
  • Distrust
  • Constant bickering
  • Irreversible antagonistic feelings

 

Cruel and inhuman treatment

Cruel and inhuman treatment must be behavior by the defendant that rises to the level such that it makes it improper for the plaintiff to continue to reside with the defendant as husband and wife. Allegations under this ground include allegations of domestic violence and repeated, extreme mental cruelty. Adulerous affairs can also be ground for a divorce based upon cruel and inhuman treatment. In New York, the longer the duration of the marriage the more severe the level of cruelty must be in order to establish grounds under cruel and inhuman treatment. Conversely, the shorter the duration of the marriage, the easier it is to prove cruel and inhuman treatment.

 

Abandonment

Abandonment may be actual or constructive. Actual abandonment is usually one spouse leaving the marital residence without the consent of the other spouse without intention to return. One spouse may also lock out the other spouse from the marital residence. Constructive abandonment is the refusal of one spouse to engage in sexual relations with the other spouse, without that persons consent.

 

Adultery

Adultery is difficult to prove as it requires either corroborating evidence from a third party or recorded proof of such activity.  Thus a statement by the defendant that he or she had sexual relations with a third party is not legally admissible to permit the court to grant a divorce to the plaintiff. However, this would be evidence of cruel and inhuman treatment on the part of the spouse making the statement to the other spouse. Whether or not the statement is true.

 

Procedure

 

Contested Divorce

The grounds for divorce may be decided by a jury or by a judge, all other ancillary relief is considered equitable in nature and must be decided by the judge alone.

The grounds in all cases must be specifically stated in the complaint, giving factual details, dates, and actual places of occurrence. Lack of proper content is not an affirmative defense; the plaintiff must prove the allegations even if uncontroverted; proof is made according to the general rules of evidence. Failure to state a cause of action will result in a judgment dismissing the complaint. Divorce may commence by means of filing and service of a Summons with Notice on the defendant. The defendant must then make an appearance and demand for the complaint by the plaintiff, or is at risk of having the plaintiff granted the divorce by default.

Once the case is filed and served the parties must request a Preliminary Conference within ninety days if the case is to be treated as a contested divorce. Such Preliminary Conference will be scheduled if one of the parties files a "Request for Judicial Intervention" (RJI) with required fee. At the Preliminary Conference the court may deal with interim issues, (i.e. temporary custody, child support, attorney fees or spousal support) and will schedule discovery between the parties that includes the valuation of assets and pensions to be divided between the parties.

 

Uncontested divorce

If all the issues are decided between the parties they may agree to submit the papers to the court for approval; this is known as an uncontested divorce. When the defendant is served but does not answer the legal pleadings the plaintiff may seek a default judgment by application to the court. If the divorce is started with a Summons with Notice then the grounds will either have to be proven by plaintiff's affidavit or by testimony at an inquest if the divorce is uncontested or to be granted by default. Uncontested divorces are also granted after the defendant appears and waives the right to answer the complaint. In these cases the defendant neither admits nor denies the plaintiff's allegations, it is up to the plaintiff to prove the allegations by testimony or affidavit in such a case.

 

Residency requirements

For New York State Supreme Courtto have jurisdiction over the parties (see DRL § 230) one of the following residency conditions must be satisfied:

  1. The marriage ceremony was performed in New York and either spouse is a resident of the state at the time of the commencement of the action for divorce and resided in the state for a continuous period of one year immediately before the action began.
  2. The couple lived as husband and wife in New York and either spouse is a resident of the state at the time of the commencement of the action for divorce and resided in this state for a continuous period of one year immediately before the action began.
  3. The grounds for divorce occurred in New York and either spouse is a resident of the state at the time of the commencement of the action for divorce and resided in the state for a continuous period of one year immediately before the action began.
  4. The grounds for divorce occurred in New York and both spouses are New York residents at the time the action is commenced.
  5. If the parties were married outside of New York and have never lived together as husband and wife in the state and the grounds for divorce did not occur in New York then, one spouse must presently be a resident of New York and have resided continuously in the state for at least two years prior to filing an action for divorce.

Residing "continuously" in the state does not mean that the party can not have left the state during the period of residency nor does it mean that the party does not have another residence elsewhere outside New York.

 

Ancillary Issues

Children

There are three keys issues when children are involved in a divorce or separation:

  1. Child Custody - physical custody (where is the child's main residence) and legal custody (who makes decisions about the child) are the two elements of custody. Custody may be joint (shared by consent between the parties) or it may be sole as determined by agreement or by court order. Before custody is awarded the court usually undertakes various investigative steps to determine what is in the best interests of the child or children. If custody is not decided upon by consent (with the court and a court appointed law guardian representing the child) then a hearing takes place at which both parties present evidence to determine who should have custody in the best interests of the child (or children).
  2. Child Visitation - the parent who does not have physical custody has either: a) reasonable rights of visitation, b) a specified visitation schedule, or c) is limited to supervised visitation. Only in very rare cases may the non-custodial parent be denied visitation. Usually this is for very specific reasons such as severe substance abuse, history of domestic violence or lack of interest in the child.
  3. Child Support - In New York the amount of child support paid by the non-custodial parent to the custodial parent is determined by the state Child Support Standards Act. Based on an adjusted gross income formula the payments are 17% for one child; 25% for two children, 29% for three children; 31% for four children; and 33% for more than four children. There are limits that can be reached for individuals with very low income below the poverty level or very high income (statutorily above $130,000 but usually over $350,000) that will allow for deviations from these percentages. Over and above monthly or weekly child support, the court is also able to award a child support "add-on" for daycare costs if the custodial parent works, educational costs for the child (usually limited to college, not private or religious elementary or high school), and medical expenses, including the cost of medical insurance.
     

Property

 

Equitable distribution is the law in New York that determines the division of property at the end of a marriage. The court examines thirteen factors in determining the fair division of the property that was accumulated during the marriage and the debts of the parties. The courts have routinely held that equal distribution is the norm except in cases of egregious misconduct, or when dealing with businesses, professional licenses, and college & advanced degrees.

 

Spousal Support

Today alimony is known as "maintenance" or "spousal support." Now maintenance, like child support, has a set formula to calculate spousal support. A grant of spousal support depends on the facts of the case, such as the disparity between the income of the parties, the duration of the marriage, the health of the parties, and the presence of very young children, for a total of twenty factors to be considered by the Court. In New York spousal support can be granted on a permanent basis, for instance in cases of physical or mental disability or when the parties are elderly (about 60 years old or older) or for a marriage of long duration. Generally, however, it is granted for a set period of time so the other party can get back on their feet after the termination of the marriage. The length of time depends on the facts of the case as the judge sees fit to award based upon twenty (20) factors listed in the statute.

 

Legal Fees

When one party to a divorce is unable to afford an attorney that party is allowed to request the court to order the spouse with the greater income or assets to pay all or part of the other spouse's legal fees. These awards can be on a temporary basis at the beginning of the suit or at the end, as the judge sees fit in each case. Now legal fees are presumed to be payable by the monied spouse to the non monied spouse. The burdon is now on the non monied spouse to disprove the presumption of payment of legal fees.

 

Expert Fees

When one party to a divorce is unable to afford an expert that party is allowed to request the court to order the spouse with the greater income or assets to pay all or part of the other spouse's expert fees. These awards can be at the beginning of the suit or at the end, as the judge sees fit in each case. Now expert fees are presumed to be payable by the monied spouse to the non monied spouse. The burdon is now on the non monied spouse to disprove the presumption of payment of expert fees

 

Name Change

The wife in a divorce often wants to use her maiden name or a prior name if she has changed her name before the marriage sought to be dissolved and wants to keep that name after divorce. The court routinely grants the right to such a name change in the final divorce decree.

 

                   Preparing to Meet with Your Divorce Attorney

                  Preparing for your first meeting with this Office, you should prepare certain documents and information to bring with you. The information you provide will help us assess your situation and develop the best plan that will optimize your objectives. 

                 This list is an example.  Not all documents listed may apply to you. You may need more documents and/or information; or less. Financial Information (including account names, numbers, balances and current statements) for the last year unless indicated otherwise. Individual income tax returns for the past three to five years (state and federal). Business income tax returns for the past three to five years (state and federal). Recent income stub. Bank statements. Statements from trusts, stocks, bonds or US Treasury notes. List of safety deposit box contents and photos of the contents of the box. Investment accounts (annuities, mutual funds) for the last year. Retirement Savings Information (including balances, beneficiaries, outstanding loans and current statements) for the last year. 401(k)s. 403(b)s. IRAs. Life insurance policies (including cash value). Social Security statement. Pension statement. Property Information (including property description, address, ownership interest, market value, outstanding mortgage and loan balances, source of mortgage and loan payments and most recent tax assessment). Primary residence . Rental properties (including any rental income). Vacation homes. Business property--- including any corporate books or kits. Personal property of value (antiques, collectibles, automobiles, jewelry, art, computers, electronics, clothing, furs, etc.) photos. Inheritance (current or anticipated). Interests in trust (current or future). List of property owned by each spouse prior to marriage. Automobile(s), boat(s) or other recreational vehicle(s) and photos. Bills and Outstanding Debt (including balances, statements, source of payments/funds) for the last year, unless otherwise noted. Credit card statements. Loan documents. Utility bill. Other bills (school tuition, medical bills, etc.). Monthly budget worksheet. Legal Documents. Last Will and Testament. Health Care Proxy. Living wills. Powers of attorney. Durable powers of attorney. Advance directives (also termed power of attorney for health care, healthcare proxy). Prenuptial agreements (also termed premarital agreement, antenuptial agreement).Divorce decrees or child support from a previous marriage. Non-financial Contributions. Contributions of a homemaker. Contributions made by one spouse to further the educational and/or career goals of the other spouse. Finally, you will also want to start thinking about other issues that may or may not be applicable to your situation. These are matters about which you should speak with your attorney and may include: Child support, Child custody (joint, sole, legal, residential), Visitation, Remaining in the marital home, Beneficiaries of insurance policies and other benefits, Spousal support / alimony / maintenance, Domestic violence issues (including spousal and child abuse), Parental Alienation Syndrome, Post-divorce support, Court Costs, Litigation Fees and Expenses, Attorney’s fees.

Give us a call, you will be glad you did.

    

         MEDIATION AND ARBITRATION ALTERNATIVES

 

 

 

 

 

 

 

 

 

 

 

 

Both mediation and arbitration are ways to voluntarily can resolve any differences between you and your spouse without going to court. Mediation and arbitration are very different ways of resolving differences.

A mediator has no power to impose a decision on the husband and the wife. He or she is there solely to help the husband and wife find a resolution that both of them will find acceptable. If they cannot agree, that's as far as the mediator can go.

An arbitrator, on the other hand, has the power to impose a settlement. The arbitrator listens to the arguments in favor of the husband and the arguments in favor of the wife, and then renders a ruling. Typically, the husband and the wife will agree in writing to submit to arbitration before the process begins. They will agree in advance to be bound by the arbitrator's decision, whatever it is.

 

Divorce, Legal Representation

Contact us in Patchogue, New York, at (631) 654-9500
for representation by our matrimonial and family law attorneys.

Answering Service Available 24 Hours a Day. Call For Your Free Consultation.

 

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