Ask the Expert - Kevin McKernan
Kevin McKernan, a graduate of the University of Notre Dame and Fordham Law School, of The Law Firm of Kevin P. McKernan, has offices in both New York and New Jersey to serve clients in both states. The firm offers legal representation in multiple practice areas, including real estate law, criminal defense, bankruptcy, and matrimonial law. McKernan understands the sensitive nature of family and divorce cases and strives to handle them with compassion, doing all he can to help his clients achieve fresh starts once their divorces are fi nalized and aiding them with the legal issues they face beyond this point, such as custody issues and changing estate plans.
To start a divorce case in New York, what legal requirements do I need to meet?
The Domestic Relations Law stipulates three different periods of prior residency, depending upon circumstances of the parties: (1) No period of prior residency is required where both parties were residents of the state at the time the action was commenced and the cause (ground) arose in New York; (2) one year’s prior residency is prerequisite if only one party was a New York Resident when the action was commenced and the parties “have resided in this state as husband and wife” or the cause (ground) occurred in New York; (3) if either party has been a resident of New York for a continuous period of at least two years immediately preceding commencement of the matrimonial action, it makes no difference where the cause (ground) occurred or if New York was never the matrimonial domicile.
Do I need a lawyer to get a divorce?
There’s no mandate that says you need one. People can, and do, file divorces on their own. But divorce, like any other legal fi ling, is complicated, and if you are considering a divorce, it would behoove you to at least consult with an attorney. Divorce can involve custody and child support determinations and a maintenance agreement, which was formerly known as alimony. And then there’s the economic factor, how the marital property is divided. An attorney is well-equipped to handle these issues and ensure that all decisions are made in the client’s best interest.
How can I choose the best lawyer for my situation?
I think any time you look to retain an attorney, you should speak with a few to find the right fit. You should be able to communicate with your attorney and feel comfortable with him or her. Choosing the right attorney is a really important decision because you’ll be spending a lot of time with this person during your divorce and after.
Make sure your attorney is admitted to practice law in New York. Go over his or her billing practices before you sign the paperwork to work with him or her. You should get a retainer agreement and a Statement of Client Rights; these are required by law. Ask your attorney about his or her previous experience in matrimonial law. Your attorney shouldn’t promise you the moon, but you should feel comfortable working with him or her.
What does the Court consider when determining a Maintenance Agreement?
Maintenance agreements are statutory, which means they are created according to factors written into the law. There are many factors the court considers when determining an appropriate maintenance agreement for a couple, including the following:
• Each spouse’s income
• The length of their marriage
• Whether the couple has children and their parenting agreement for them
• The ability of the partner seeking maintenance to find work
New York is moving toward temporary maintenance agreements, which are agreements that last only for a period of time until the receiving spouse can complete his or her schooling or find work. Permanent maintenance has always been rare, and with the new spousal maintenance statute, is going to become even more rare.