Divorce FAQ

1. Can I get a divorce if my husband and I still live together?

Possibly, if you are filing for a fault-based divorce. However, you should keep in mind that in many cases, starting a divorce action while living with your spouse may not only be emotionally difficult, but it may also be dangerous for you and your children if there has been domestic violence in the home.

2. Will my children’s last name change after I get a divorce?

Divorce proceedings alone will not change your children's last name. If you want to change their last name, you will have to file for their name change separately in court. Generally, if you want to change your children's name, the other parent must be notified and has the right to object. For information in New York State about name changes:

www.lawhelp.org/documents/81481CBCBasicSSNNameChangercb.pdf

It is possible, however, for you to have your name changed back to your pre-marriage name through divorce proceedings.

3. How do I contest a divorce I do not want?

If you are served with divorce papers but do not want to get a divorce, you can contest the divorce by hiring a lawyer or by contacting your spouse's lawyer within twenty days and filing a Notice of Appearance. The Notice of Appearance tells the court that you plan to participate in the divorce proceedings.

4. What if my spouse contests the divorce?

If you filed the divorce papers and your spouse wants to contest it, then he will have to file a Notice of Appearance.

After the Notice of Appearance, there will be additional forms and documents to file, and you may have to go to court several times.

You may finalize your divorce through an out-of-court settlement or by a trial in court. It may take a year or more to get to a trial. In a trial, a judge will decide if the grounds for divorce and the things each spouse asked for are appropriate and the judge will make decisions about all of the issues raised in the divorce (division of property, custody, maintenance/alimony, etc.).

5. Do I need a lawyer?

It is better to have a lawyer if at all possible. If you are filing for an uncontested divorce and you believe your spouse will not disagree with anything, then you can file without the help of a lawyer.

If you are asking for custody, child support, financial support, or a share of marital property, you may want to hire a lawyer because there may be things you have not thought of that you can ask for. A lawyer can also help you protect money or property that is yours. Also, it is important for you to find out if your husband has a pension, retirement account, insurance or other significant property before you decide whether to file for divorce. If you do not ask for such things in the divorce, you will give them up forever.

If the only "contested" issues involve custody or visitation of the children and there are no other financial issues or division of property, you might want to deal with custody and child support in Family Court before you file for divorce. Those family court orders would be incorporated into (become part of) the divorce. This may make the divorce uncontested and easier to handle.

If you are low-income, you can get an attorney appointed for you in the divorce but only to handle the custody and visitation portion of the divorce action, not the division of property or support portions. (You could also get an attorney appointed to handle an order of protection if you file for an order of protection during the divorce). Prior to 2006, there was no right to have counsel appointed in a divorce at all. However, a new law went into effect on August 16, 2006, which states that parties in supreme court have the same right to get a lawyer appointed as they would have had if the case were being heard in family court.*

* See NY Judiciary Law § 35(8)