Filing for Divorce in New York: Do I Need a Divorce Attorney?
Dissolving a marriage can be costly and extremely hard for your family.
Many couples believe that avoiding divorce attorneys will keep animosity at bay and bring peaceful resolution more quickly.
Unfortunately, this is often not the case.
To help you make the best decision for your situation, we will review:
- Questions worth considering to determine if you need a lawyer
- Types of divorce in the state of New York
- Possible consequences of pursuing a divorce without legal representation
How Do I Determine if I Need a Divorce Attorney?
In the state of New York, it is possible to complete the divorce process without the assistance of a divorce attorney. This option is easiest if your divorce is uncontested.
The hard truth is, the realities of life—finances, children, and property—often affect the viability of an uncontested divorce.
There are several questions you can, and should, ask yourself when determining if you need a divorce attorney.
Has Your Spouse Hired a Divorce Attorney?
Generally speaking, if your spouse has hired an attorney, it is wise for you to also hire an attorney.
If you pursue a divorce unrepresented while your spouse has representation, it can be difficult to advocate for yourself.
This can lead to:
- Lack of compromise
- Undesirable custody agreements
- Inequitable division of assets
- Support payments of an inappropriate amount
In some cases, couples may utilize one attorney. But one attorney cannot represent and advise both parties. Such cases are dependent on the filing of an uncontested divorce in which only assistance in drawing up and navigating divorce paperwork is required. Otherwise, you should each have your own attorney to advise and represent you.
Do You and Your Spouse Have Children?
Divorce is emotionally draining for the adults involved—and adults typically have the capacity to manage and compartmentalize stress and anger.
Children can be deeply affected by divorce, and even more so by events that often follow.
To reduce future tension and ensure children are protected, you should retain the legal support of a divorce attorney to establish:
- Custody agreements
- Visitation schedules
- Child support
When parents create structure and legally agree on plans for their children, there is less room for future conflict.
With over 20 years of experience, our firm, Winter & Grossman, is qualified to represent you in matters of matrimonial and family law.
We are here to assist you in navigating the difficult discussions and negotiations that arise when children are involved in a divorce.
Are Your Finances Complicated?
Finances—many couples fight over finances during marriage. These fights are even more contentious during a divorce.
New York is an equitable distribution state. This doesn’t necessarily mean all marital property, including money, will be divided 50/50—but it must be divided fairly.
Every aspect of your finances must be considered during a divorce. This includes:
- Retirement accounts
Some of your finances may fall under “marital property” while other portions are “separate property.” identifying which property falls into each category may not be obvious, especially since some property may fall into both categories.
A divorce attorney understands the intricacies of property rights in relation to finances and may be essential in helping you achieve equitable distribution.
Do You Own Substantial Property?
Property in marriage is categorized as “real property” and “personal property.”
Your “real property” is essentially anything you own that cannot be moved, such as:
- Your home
- Vacation property
“Personal property,” therefore, applies to everything you own that can be relocated. Items such as:
The more property you own, the more arduous it may be to agree on equitable division.
Furthermore, sentiment toward property can be a tough obstacle to overcome during a divorce.
While you may see more value in selling your vacation home and dividing the equity, your spouse may hold extremely fond memories of your children spending summers at the property—and resist the idea of selling.
Divorce attorneys can assist you in outlining settlements that appease both parties in a divorce.
Are You or Your Spouse Seeking Maintenance?
Spouses are legally obligated to financially support one another under certain circumstances.
During a legal separation and throughout the divorce process, this financial support is referred to as “spousal support.”
The enmity that often arises between spouses during a divorce can cloud judgment. It can be hard for both sides to peacefully agree on the necessity of maintenance—and equally problematic is the determination as to how much maintenance should be paid and over what period of time.
If you believe maintenance will be a topic of discussion or negotiation, it is highly recommended that you seek legal advice and support.
Do I Need an Attorney for a Divorce in New York?
The state of New York says no. You can choose to represent yourself in divorce proceedings.
But, that doesn’t mean pursuing a divorce without a divorce attorney is wise.
All avenues of divorce can benefit from the representation of—or, at minimum, consultation with—a divorce attorney.
In the state of New York, you will file a contested divorce if you and your spouse do not agree on the grounds for divorce or are not in agreement regarding one or more of the following:
- Division of property
- Child custody
While you can always choose to represent yourself in a divorce, having a divorce attorney to advocate for you in these sensitive areas can:
- Alleviate stress
- Reduce friction between you and your spouse
- Ensure third-party expert assistance is utilized when needed
If you are filing a contested divorce, you may also choose to use mediation.
In mediation, a neutral third-party assists a couple in working through each aspect of their divorce to agree upon a settlement outside of court.
A mediator may be a divorce attorney, but if the divorce cannot be settled through mediation, your mediator cannot represent either party in the litigation that will likely follow.
An uncontested divorce can occur when both spouses accept the grounds for divorce and agree to all the divorce-related topics previously mentioned.
When couples decide to initiate a divorce without divorce attorneys, they are most commonly filing a simple and uncontested divorce.
In an uncontested divorce, you must be able to show the court that you are in agreement in all areas.
Even if you genuinely are in agreement, it is often wise to consult a divorce attorney—if only to make sure you are following all of New York’s divorce laws and have filed all of the appropriate paperwork to show the court that your divorce is truly uncontested.
Possible Consequences of Not Hiring a Divorce Attorney
Divorce can be a very challenging process. There will be legal jargon you may not fully understand, and roadblocks you may be unable to navigate on your own.
If you choose to pursue a divorce without legal representation, you should do so knowing that you may face some consequences.
We will address some of these consequences below.
If you are interested in speaking with an experienced divorce attorney to review your options, we encourage you to reach out to our team at Winter & Grossman.
Inequitable Distribution of Property
Without a divorce attorney, you may not fully understand the value of your marital estate.
This lack of understanding may enable one spouse to leave the marriage with more than their fair share of property distribution.
Once a divorce is finalized, it can be very complicated to modify a judgment, if it can be modified at all, and if your spouse has parted with the contested property, the complications increase exponentially.
Prolonging the Process
A couple most commonly pursues a divorce without representation when they are able to agree upon pre-divorce arrangements and choose to file an uncontested divorce.
If, at some point during the process, you or your spouse no longer agree with pre-divorce arrangements regarding your children, property, or spousal support—you will need to change the divorce process by filing for a contested divorce.
In this case, you will likely need to hire, or at least consult with, a divorce attorney.
Your divorce process may be prolonged—making it harder for you, your spouse, and your children to find your new normal.
Winter & Grossman – Helping You Divorce With Dignity
If you are considering hiring a divorce attorney, our team at Winter & Grossman is available to provide an initial consultation.
We take a personal approach with each and every one of our clients and can represent you in all aspects of Matrimonial and Family Law.
We are based in Garden City, NY, and serve clients in Nassau and Suffolk, Westchester, and the NYC Metropolitan Area.