Whether you are considering a divorce, in the middle of divorce or custody litigation, or navigating other family law issues, having a basic understanding of New York divorce and family law can simplify the process and help you navigate it more successfully. There are many myths and misconceptions out there, making it difficult for someone who is not an attorney to know what is true. Even more confusing, everyone’s situation is different and so what happened to your friends in their divorce may be very different than what will happen in your divorce. Here are some common myths and misconceptions about the divorce process in New York:
Myth #1: It is possible for one spouse to deny or reject divorce.
While a spouse can make the divorce process very difficult, in New York, a person can no longer prevent a divorce from occurring. Once a spouse files for divorce, the process is set in motion. If the other spouse refuses to cooperate or to respond to the divorce action, then the matter can still be brought before the court. If the other spouse ignores court appearances or refuses to sign any necessary papers, a judge can ultimately grant the divorce without any input from the uncooperative spouse.
Myth #2: The mother is usually awarded custody of the children.
By agreement, parents can design a custody arrangement that works best for them and their children. However, if custody cannot be agreed upon between the parents, custody will be decided by a judge. New York law provides that the judge shall base the decision following a determination of "the best interest of the child”. While 30 years ago, there was a strong bias towards favoring the mother in a custody dispute, believing that was often in “the best interest of the child”, that is often no longer the case. With many households now composed of two working parents, sharing childrearing duties, most judges no longer display that same bias, and fathers, when the circumstances are appropriate, are much more likely to be awarded custody than they had in the past.
Myth #3: It is better to be the one to file first.
A common misconception is that it is better to be the one to file for divorce first. Similarly, other people believe it is better to wait until their spouse files for divorce. While there may be certain considerations in filing first, including obtaining restraining orders, having some control, initially at least, as to whether to pursue the lawsuit to conclusion and, should the matter go to trial, determining who presents their case first, there is no inherent advantage or disadvantage in who files first. While no one wants to be labeled the “Defendant” in a criminal proceeding, being the “Plaintiff” or the “Defendant” in a matrimonial proceeding has no negative connotations nor ramifications.
Myth #4: I can withhold visitations if the other parent does not pay child support.
The failure to pay court-ordered child support can have serious ramifications, including, albeit not frequently, incarceration and the suspension of licenses. In the event you are subject to a child support order and find yourself unable to comply, it is imperative that you seek legal counsel. Working out a “deal” with the other parent may not relieve you of the legal obligation to pay back arrears, regardless of what you both may have agreed upon.
However, the non-payment of child support does not give the custodial parent the right to deny the other parent access to the children. This sort of self-help is greatly frowned upon by the courts. Visitation and child support are treated as separate matters. A parent should not withhold visitation or parental access if the other has not paid child support and instead, should seek the advice of a skilled family law attorney.
Myth #5: Most divorces require a trial.
The vast majority of divorces are resolved by way of a settlement between the parties rather than by a judge, following a trial. It is our strong opinion that, whenever a reasonable settlement is possible, parties are much better served resolving the matter amongst themselves, with the help of competent attorneys. Should the matter go to trial, not only will the parties generally spend a significant sum of money, but a judge, who has limited time in which to get to know the parties’ history, will decide the future of both parties and their children. As such, it is ideal to avoid the courtroom entirely, if possible. Most divorces occur through mediation, collaborative divorce, or by a settlement reached through negotiations between the parties' attorneys. Unfortunately, of course, there are times when litigation and even trial are necessary. As such, it is imperative, in our opinion, that the law firm you retain is skilled both at obtaining favorable settlements without litigation and when appropriate, being able to represent you effectively through trial.
Our attorneys know how confusing and overwhelming divorce and family law can be. If you or someone you know is considering divorce or is navigating family law issues, learn more about our team of experienced attorneys at Joseph Law Group, P.C., or call us at 516-542-2000 to book a consultation.
