1. Cruel and inhuman treatment.

2. The abandonment of the Plaintiff by the Defendant for a period of one
                or more years.

3. The confinement of the Defendant in prison for a period of three or
                more consecutive years after the marriage of Plaintiff and Defendant.

4. Adultery.

5. The husband and wife have lived separate and apart pursuant to a
                written separation Agreement for a period of one or more years.

Whichever ground a Plaintiff relies on, it will have to be proved.  The exact type and amount of evidence necessary to prove a certain ground are established by prior cases.  In this state, there may at some point be a trial at which you will have to testify about the allegations and prove these allegations to the satisfaction of the Court.

In the context of a divorce proceeding, you will be asked to provide this office with certain relevant information from which we will get the necessary facts for preparing and filing legal documents - a Complaint if you are suing or an Answer if you have been sued - with the Court.

MECHANICS AND CHRONOLOGY

Once a Divorce Complaint is filed or answered, it is generally months before the court hears the case.  Since each individual case may vary, this period could be longer - especially in the event of a contested divorce, complex property settlement, or disagreement over custody or support money.

After the initial “Complaint for Absolute Divorce” has been filed and served on the other party, then if the other party intends to answer and/or file a Cross-Complaint, he or she must do so within 20 or 30 days.  Your spouse may accept service to expedite the proceeding and avoid being served at work or home.  After this period has gone by, and preliminary matters have been dealt with, discovery can be scheduled.  After discovery is completed the case may be put on the trial docket to await its turn to be tried before a Judge.

Our law firm will expeditiously handle your case and answer all your legal responsibilities.  If your desires or circumstances change we of course cannot answer for any extra delay that may cause.  We represent you and stand ready to advise you and to do what, once advised, you instruct us to do.  We are always pleased to hear any good news of reconciliation, and in the event that you decide at any time to withdraw from any litigation which is before the Court or in the process of being prepared, please notify us at once so that we can keep the legal process from going any further.  Otherwise, we will prepare documents which you must read and sign for filing with the Court and then we will notify you of the trial date as soon as we are advised of it - usually several weeks beforehand.

SEPARATION AGREEMENTS (PROPERTY SETTLEMENT)

Many of the matters incidental to a divorce can be more expeditiously disposed of if they are agreed (settled) between the parties and not contested in Court.  The matters that are agreed on can be presented to the Court in a contract signed by husband and wife, called a Separation Agreement.  It can deal with property division, support and maintenance, custody and visitation, insurance and many other subjects.  If the Court accepts the Agreement it will adopt it as part of the final divorce decree and give the Agreement the strength of a Court Order, enforceable by contempt proceedings.  A divorce is not considered “uncontested” if this Agreement is arrived at only after substantial attorney negotiation.

SPECIFICS

Property Matters: Property ownership and division of the assets of a marriage are usually decided at the final hearing.  If the respective parties to a divorce can agree themselves on division of properties, then this may be incorporated into a property settlement to be presented to the Court for approval.

Unless one party has acted in an egregious manner toward the other (conduct which would “shock the conscience of the Court”) fault does not play a part in the distribution of the marital assets.  Accordingly, in terms of the division of the marital property, it does not matter which you are the plaintiff or the defendant.

Division of the marital assets are dictated by New York’s Equitable Distribution Law, DRL 236(b).  While every case turns on its specific facts, generally speaking all property that was acquired during the course of the marriage, regardless of whose name the property is held in, will be divided between the parties on an “equitable basis”.  While the statute does not specify an equal distribution, Courts will generally divide all marital property fairly close to equally between the parties, subject to some specific considerations.

Support of Spouse/Children: While a case is pending a spouse may be found liable for support of the other spouse and/or children.  If the parties cannot agree upon an amount, the Court will determine this amount.  Support amount is based upon earnings of the respective spouses and needs of the support recipient.  A permanent Support Order will probably be part of the final divorce decree.

Child Custody: If child custody and visitation rights cannot be agreed upon, then the Court will establish them.

Woman’s Name: A married woman’s rights to resume use of her “maiden” name will automatically be stated by the Court in the divorce decree.  Prior to obtaining a divorce decree, a woman may resume the use of her maiden name without a Court Order as long as it is not done with the intent to defraud.

INTERIM RELIEF

It is possible to obtain immediate financial support from a spouse, and an immediate temporary Custody Order from the Courts as soon as a divorce complaint is filed.  In an appropriate case, one party can temporarily be barred from certain premises or put under a Court Order to keep him/her from attacking or threatening the plaintiff or removing the children.  If you think you will need such special relief, please mention it to your counsel immediately.

RESPONSIBILITIES OF ATTORNEY AND CLIENT

You as the client of our law firm are entitled to expect us to preserve your confidential communications and to prosecute your case to the best of our professional ability.  The facts of your case will be the chief determinant and the outcome will be in the sole discretion of the Court - subject to appeal if necessary.

Frequently, legal aspects of a matrimonial proceeding closely involve other family members and third parties.  After you have deposited an amount of money with us as a retainer you will be regarded as having established an attorney-client relationship with us.  Once this relationship has been established, you will be asked not to relay specific settlement proposals to an estranged spouse.  This creates ethical difficulties for the lawyer under the Code of Professional Responsibility because it involves bypassing the other parties’ lawyer.  This is regarded as taking advantage of the other party.  For the same reason you cannot expect us to talk directly to your spouse.

As the client, your first major responsibility will be to work out the course of the continuing personal relationship with your spouse, and as the case may be, your children.  This does not mean that we will not be available to you to discuss the legal aspects of day-to-day problems, but our fees are based on time spent on a case (including telephone conversations) and there is no need for you to increase your legal fees unnecessarily.

Your second responsibility will be to inform us of any relevant changes in your current domestic situation - especially a reconciliation.

When Court appearances are scheduled, it will be your responsibility to be present, on time, at the designated Courtroom in the County Court House.  If witnesses are required to be present in your behalf, you will coordinate everything with them and be certain they know when and where to be.

You will have to produce records of your total income, whether from wages, fees or investments, and all of your assets, and furnish a complete list of all debts and liabilities, including amounts required to meet all installment payments.  Keep complete notes regarding living expenses for yourself and for any children or other dependents.  When not able to state exact expenses, you should make your best reasonable estimate.  Always attempt to be fair to yourself as well as your spouse.  A party will certainly get no more than is asked for, but ought not to ask for either more or less than is reasonably needed.  Keep in mind the fact that Judges are very experienced in these matters and will quickly recognize exaggerated demands.

Our experience has been that most matters truly necessitating emergency evening discussion are matters involving concern for physical well-being.  If there is a genuine emergency, the best procedure is to call the police directly.  As lawyers, we represent you in the Courts but we can do little to help you at your home.  We are not the police and have no more authority than anyone else to intervene.

LEGAL FEES AND COSTS

In addition to our firm’s legal fees, you will be responsible for payment of Court costs and other expenses necessary in connection with your case.  These go directly to the Court and other suppliers of non-attorney services in your case, e.g. process servers, Court Reporters, etc.  In this area, the costs associated in an uncontested case usually amount to about $300.00 to $400.00.

We require a base retainer fee which is billed against an hourly basis for services rendered.  The base retainer fee will be credited toward your final billing.  In addition, you will be expected to pay for the filing fees, Court costs, and any itemized costs such as long distance phone calls, travel, copying, deposition fees, and professional services such as expert witnesses, property appraisals, evidence gathering, or accounting services.

During the initial consultation, we endeavor to discuss the factors involved in computing our entire fee, and the probable total cost to you.  Realizing that the payment of this fee represents the expenditure of considerable funds, we encourage you to be certain or your desire to proceed and emphasize that such action should be taken only after careful consideration on your part.

The Court might direct your spouse to pay a portion, or all, of your legal fees, but you remain primarily responsible.  You will not receive credit for payments ordered from your spouse unless and until they are actually received by us.  Any payment by your spouse will be credited to your billing.

Money matters are not pleasant to discuss, but good policy dictates a forthright discussion of the costs at the beginning.  In our judgment, it is important that you understand the cost to you, the basis for charging, and what you may expect.

DUAL REPRESENTATION

Though it might appear to save money for some clients, this firm cannot ethically pretend to contract for representation of both the husband and the wife in a divorce or post-divorce matter.  It would be a pretense, for no attorney can truly serve as a conscientious advocate for parties on opposite sides of any case, not matter how “uncontested” it may appear at the outset.  Even if both parties consent to dual representation, the conflict of interest and appearance of impropriety could operate as a fraud; therefore voiding any agreement reached between the parties.  Accordingly, it is the policy of this law firm to only represent and advocate on behalf of one party to any litigation.

MISCELLANEOUS