FAQ series: default divorce; temporary maintenance (alimony); and time requirements for divorce

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My answers to commonly asked questions.  Keep in mind: this does not constitute legal advice about your specific case; and, I’m not your lawyer until you pay me.

1. I served my spouse with papers, it’s been over 4 months since this has happened, what do I do now?

It sounds like you qualify for a default divorce. This means that your spouse did not appear or Answer after s/he was served the Summons, so you will proceed with the divorce paperwork and submit the Affidavit of Service with your uncontested divorce package. Filing your own divorce without a lawyer is a huge task, even if you have no kids or assets. Even experienced practitioners can easily screw up a divorce filing as the rules frequently change or vary from county to county.  I suggest having a lawyer review your paperwork before you file to make sure you have everything you need.

2. What is “pro rata maintenance”?

Temporary maintenance (alimony) is paid during the divorce action. There is currently a NY statute that calculates how much temporary maintenance will be based on a formula (look at the court’s temporary maintenance calculator here: http://www.nycourts.gov/divorce/calculator.pdf ). Generally, post-divorce maintenance is much lower in amount than temporary maintenance. In addition, if child support is also owed, the amount due in temporary maintenance must be subtracted from the payor’s income before calculating child support.

3. How long must we be separated prior to filing for uncontested divorce in NYS?

There is no required length of time that you must be separated before filing for an uncontested divorce. Under New York’s No Fault divorce law, one spouse must affirm or swear that the marriage is “irretrievably broken for 6 months or more.” This does not mean that the parties must be separated for six months, only that the relationship must be broken for that long (a very subjective question). If a couple has been married less than six months, then other grounds must be used.

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