Some Divorce Questions

[TPK]

Soc,

Divorce will be in NY. According to what I've read the The no-fault grounds for divorce in New York are

-living separate and apart for one year under the provision of a written signed and notarized separation agreement;

-living separate and apart under the terms of a judicial separation decree(Legal Separation).


The following are some of the fault based grounds:

-imprisonment for three years or more

-abandonment for one year

-cruel and inhuman treatment

-adultery

None of these apply by NY law to my divorce as of yet.

Wife used cruel and inhuman treatment as her grounds for a divorce. She used that phony OOP again and tried to say I assaulted her. Police report says different and shows no injuries, no arrest no RO...nothing.

Her cruel & inhuman treatment examples were laughable, baseless and unproveable I believe.

Questions

1. How difficult is it to prove cruel & inhuman treatment?...and how do the courts define what is considered cruel and inhuman?


2.  Can a divorce be thrown out based on the fact that there's no legal grounds for a divorce yet?


Cheers

TPK

[socrateaser]

>1. How difficult is it to prove cruel & inhuman
>treatment?...and how do the courts define what is considered
>cruel and inhuman?

I'm sort of surprised that her attorney would allow that sort of pleading. It's pretty darn difficult to prove, in view of the fact that the OOP judge threw the evidence out.

The bad part of that is, that she's gonna waste your money trying a non issue. More than likely you will settle this part of the divorce.

>2.  Can a divorce be thrown out based on the fact that there's
>no legal grounds for a divorce yet?

NY is an at fault jurisdiction, nevertheless, I'm sure that NY attorneys have workarounds for this little problem. Bottom line is that you can get an separation decree for a year and then a divorce judgment, whether your wife wants it or not.

[TPK]

>
>I'm sort of surprised that her attorney would allow that sort
>of pleading. It's pretty darn difficult to prove, in view of
>the fact that the OOP judge threw the evidence out.

Remember that this was her last ditch effort to get this outta NJ. She submarined me with her divorce suit, thus ending my custody suit in NJ.


I spoke to my wife yesterday and asked why she lied so much in her pleadings. She replied that her lawyer told her that it is common practice to lie in pleadings to make each parent seem like monsters.  None of my 3 lawyers ever suggested lying, and my pleadings were truthful. Maybe my lawyers missed that day at law school when that was taught.


>
>NY is an at fault jurisdiction, nevertheless, I'm sure that NY
>attorneys have workarounds for this little problem. Bottom
>line is that you can get an separation decree for a year and
>then a divorce judgment, whether your wife wants it or not.

1. Would the separation decree begin when it's entered in court or when we actually separated which was Sept 04??

2. Being that there's no custody order yet, could I then file for custody in Ulster County?

Nothing is court ordered yet as we're between venues. The visitations issued by Judge were given to me but I don't believe anything is court ordered. Maybe I'm wrong but I have nothing in writing.

Cheers

TPK








1. Would the separation

[socrateaser]

>I spoke to my wife yesterday and asked why she lied so much in
>her pleadings. She replied that her lawyer told her that it is
>common practice to lie in pleadings to make each parent seem
>like monsters.  None of my 3 lawyers ever suggested lying, and
>my pleadings were truthful. Maybe my lawyers missed that day
>at law school when that was taught.
>
Wish you had notified her in advance in writing of your intent to record all your conversations with her and then gotten that one on tape. That would have been the end of your wife's attorney's career.

While attorneys usually massage the pleadings to present facts in the best light of their client, it is not common practice to lie, and proof of encouraging one's client to lie in a pleading would mean certain disbarment.

>
>1. Would the separation decree begin when it's entered in
>court or when we actually separated which was Sept 04??

Up to the judge's discretion.

>
>2. Being that there's no custody order yet, could I then file
>for custody in Ulster County?

I thought you received a change of venue to Ulster already? If so, then you can file a temporary custody motion therein.

>
>Nothing is court ordered yet as we're between venues. The
>visitations issued by Judge were given to me but I don't
>believe anything is court ordered. Maybe I'm wrong but I have
>nothing in writing.

Just because a court order is issued verbally by the judge, doesn't mean it's not an order. The clerk writes it down in the "minute orders" and, generally an attorney will use the minutes to draft a temporary order, have the other attorney approve it as to form, and then send the order back to the judge for signature and entry into the court file.

Regardless, it's still an order, although verbal orders are hard to enforce, because you have nothing to show the sheriff.

[TPK]

>
> Bottom line is that you can get an separation decree for a year and
>then a divorce judgment, whether your wife wants it or not.


Soc,

Spoke to my NY lawyer about a separation decree. He stated that I couldn't "force" her to do this so I have to question your above answer in a previous post.

1. Do laws vary on this from state to state??


I did bring this up to my wife. She didn't know what it was so I had to explain it to her. I feel the SD is the way to go especially after my lawyer told me I wouldn't get custody. I also was not aware that all issues including custody would be decided in a SD.

My lawyer was honest with me and told me the SD is the way to keep legal fees down. I feel wife's lawyer will reject the SD as she wants to run up the bills on her.

Wife obviously hasn't tried to educate herself in family law. I have spent countless hours researching this, asking you questions and my lawyers questions.

I had my 1st overnite weekend with daughter this past weekend. Things are going great with her, though wife seems to be having separation anxiety.

Cheers

TPK

[socrateaser]

>Spoke to my NY lawyer about a separation decree. He stated
>that I couldn't "force" her to do this so I have to question
>your above answer in a previous post.
>
>1. Do laws vary on this from state to state??

Yes. NY is one of the few remaining jurisdictions where divorce remains "at-fault," which means that a party must prove grounds on which the marriage may be dissolved. The original intent of these laws was to discourage divorce generally, but also to provide a rationale for whether spousal support (alimony) would be ordered. I.e., it is a general proposition of law, that a person will not be penalized for no reason, and spousal support without "fault," devolves into the receipt of money by one party based on nothing more than that party's need, rather than based on compensation for some injury sustained or unjust enrichment obtained by the other party.

The common word for this sort of transfer of money is "socialism," i.e., "From those according to their abilities, to those according to their need." -- Karl Marx, Critique of the Gotha Programme.

Unfortunately, whether in a "fault" or a "no-fault" state, the legislatures have decoupled spousal support from its original fault-based underpinnings, and what is left is quite simply a shining example of Marxism in action.

So, as a practical matter, while you would have been better off in your circumstances 100 years ago in a fault jurisdiction, today you are actually worse off, because you must suffer the combined insults of having to prove a fault based reason for your divorce (or obtain consent from your spouse), AND pay support to that spouse regardless of her fault in creating the circumstances leading up to the divorce.

Anyway, on this subject, I would defer to your NY attorney, because he will know the local ins and outs of reducing the litigation costs. If he says you can't get the judge to order a separation decree except upon your wife's consent, then you'll have to either prove one of the statutory faults that permits the court to order the divorce, or you'll have to negotiate a settlement, which of course, is sort of almost EXACTLY like criminal extortion, i.e., pay your wife to give you the divorce.

And you thought that Fantasyland was only at DisneyWorld, huh?