New York Divorce Matrimonial Blog

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Helpful Suggestions for Handling Your Divorce: Part VI

By prmg / 15 Mar 2010

Never allow the statements of your spouse or the advice of your family, friend and other acquaintances who have done through matrimonial litigation to undermine your confidence or your relationship with your attorney.

Frequently, one spouse will advise his mate that his Lawyer is “terrific”, “knows all the judges”, “has friends in court”. And otherwise, has a more adept lawyer than you. Remember, these threats are designed to undermine your confidence in your relationship with your attorney. If they succeed, then your ability to work with your attorney is ruined. Similarly, you may have acquaintances who find out about your matrimonial problems and discuss the facts of their case with you. You may well wonder why the approach or theory which your friends so rightly feel was good for them IS. Not being used in your care. You must remember, no two matrimonial cases are alike. Each one IS different; each one has its strengths and weaknesses.

The best way to handle your fears about litigation IS by open and frank discussions with me. I welcome it. In fact, I insist upon it so that you may be fully advised as to the philosophy of your matter, as the reasons why certain choices are being made in your case and other rejected.

Common misconceptions about divorce or separation

Question: True or False?

IF you are separated by written agreement (a so-called legal separation) or by a Court awarding you a judicial separation, whether contested or not, you are free to commit adultery.

Answer: False

Your spouse can divorce you if he or she can prove that you have committed one act of adultery while you are legally separated, regardless of whether you are separated pursuant to a written agreement or by Court order. A separation does not change your marital status. Only when you are divorced, are you free, in a sense, to engage in an adulterous relationship.

Question: True or False?

After a separation agreement is signed, you must wait one (1) year for a divroce and then is it automatic?

Answer: False

A separation agreement does not waive any rights that you may have to obtain a divorce based upon cruel and inhuman treatment or adultery. It is only when you seek a divorce based upon an existing separation agreement that the law requires you wait for one year after the agreement is signed, and in that event, the divorce is never automatic.

Whoever seeks a divorce pursuant to a separation agreement or judicial separation must establish that he or she has substantially complied with the terms of the separation. The only defense to a judicial separation is the fact that the party seeking the divorce, pursuant to the judicial separation, has not substantially complied with the terms of the separation. There are two defenses, however, to a divorce action founded upon a separation agreement. The second defense is that the parties resumed cohabitation as husband and wife after a separation agreement. Remember, one isolated act or a series of infrequent acts of sexual relations between husband and wife after a separation agreement is signed does not void the separation agreement. However, a resumption of the marital relationship would void the separation agreement, making it useless as a foundation for a subsequent divorce action.

Question: True or False?

A parent who is guilty of adultery IS in greater likelihood of losing custody of his/her children.

Answer: False

The mere commission of adultery also IS not sufficient grounds to deprive a parent of the custody of a child or children. It is, however, one factor to be considered among many which bear upon the welfare of the child or children.

Question: True or False?

A husband or wife can refuse to “sign” for a New York divorce.

Answer: False

This question is nonsense. In the State of New York, neither party “signs” for a divorce. The divorce is granted by a Judge provided that party seeking the divorce proves to the Judge’s satisfaction that he or she has sufficient grounds under the laws of the State of New York to be entitled to a divorce. Note, that there a number of foreign countries in which a divorce by “consent” call be obtained. In other cases, “signing” for a divorce is applicable.