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LawTalk, Attorney and Counselor at Law
Category: Family Law
Satisfied Customers: 37855
Experience:  30 years legal experience. I remain current in Family Law through regular continuing education.
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Im getting divorced and we were married in North Carolina

Resolved Question:

I'm getting divorced and we were married in North Carolina by state law we need to be seperated for at least a year to file for divorce.

I'm a resident of New york and was told that since I'm from Ny and in the Military I could File for divorce immediatly in NY.

I ask this because My wife is unemployed currently due to my investigation she had put in her 2 weeks leave believing we would have been PCS'd and she could have started looking for new work.
I drafted a seperation agreement and offered to cut the BAH in half for her which is 3036 half would be 1508. I'm offering to pay for professional Movers to move her back to North Carolina. Pay her deposit and secruity if needed on an apartment and continue to pay car insurance, and her cell bill and pay 100% of whatever if any medical bills arise that Tricare can't cover.

I know that Army regulation mandates that I support her but I'm not sure how to figure out how much I'd be mandated to give. I spoke with local JAG and they gave me a lover figure then 1508 so I'm thinking I'm doing a good thing especially since a comparable apartment in NC would only run 750. Plus I'm paying all her other bills I'd even be willing to chip in for utilities. so she'd have 750 a month to use for whatever she desires.

She's demanding 2330 not including the afformentioned bills be paid. She also wants the separation agreement to read that I continue to support her until divorce is finalized and not until she can support herself whichever comes first. She states that i supported her while she worked so I should continue to do so until she's no longer my wife..
She also wantd to keep everything in the house except what she has deemed mine.

What legal rights do we both have in this situation?
Submitted: 5 years ago.
Category: Family Law
Expert:  LawTalk replied 5 years ago.

Good morning,

I'm sorry to hear of the situation.

First of all, thank you for your service to our country!

While you may well qualify to file for divorce in NY based on you being stationed there, you still must abide by the NY grounds for divorce, and if you seek a no-fault---irretrievable breakdown of the marriage--- divorce---in other words you cannot sue based on adultery, abandonment or some other fault ground---you still must be separated for at least 6 months under NY law before you may file.

As for the spousal support that you will be obligated to pay---if the marriage has been short---less than 10 years---if support is ordered at all by the court, it will likely be no more than 20% to 25% of your gross wages in the military including payment of base pay, housing and rations.

She seems to be asking for a whole lot more than she will be entitled to---and unless you just want it ended---you'd be foolhardy to simply give in. You would be much better served by retaining a local family law attorney to assist you in preparing and negotiating the separation settlement agreement.

I wish you the best in 2012.

I understand that you may be disappointed by the Answer you received, as it was not particularly favorable to your situation, nor was it what I sensed you were hoping to hear. Had I been able to provide an Answer which might have given you a successful legal outcome, it would have been my pleasure to do so.

Thanks Again,


Customer: replied 5 years ago.

If she claims she's caught me in my house with another woman what bearing would that have on this divorce?

Expert:  LawTalk replied 5 years ago.
Good morning,

If she can prove adultery---not just that another woman was in the house with you---your spouse could file immediately for divorce in NY---but only she could file. You can not make us of your own actions to circumvent the waiting period for a no-fault divorce.

I hope you found my answer informative, even if the law is not necessarily in your favor. I wish you the best in 2012.

LawTalk and other Family Law Specialists are ready to help you
Customer: replied 5 years ago.

If she could prove it other then divorce is there any other legal actions that can be taken against me?


For instance could she use adultery as a means to force me to support her for an extended period of time?


Expert:  LawTalk replied 5 years ago.
Good afternoon,

Well, you are in the military---and it is a violation of the UCMJ as I recall from my service days. Yes, you could be in a world of hurt as far as your military career/service is concerned.

As for spousal support and division of property, adultery can have an affect on how the court will order both of those things.

LawTalk and other Family Law Specialists are ready to help you
Customer: replied 5 years ago.
I have another question about irretrievable breakdown of the marriage in NY. From othe New york based lawyers websites i've come across it seems to me that I'd just have to file a sworn statement that the marriage has been irretrievably broken for 6 months rather then actually being seperated for 6 months.
Expert:  LawTalk replied 5 years ago.

Good evening,


That is true----but your spouse can always challenge that assertion. The law does, however, ONLY require the breakdown to have been in full swing for 6 months. If the assertion is not rebutted, then it will be accepted by the court.



LawTalk and other Family Law Specialists are ready to help you
Customer: replied 5 years ago.
Do you practice family law in NY?
It seems as though this is a gray area and not clearly defined.

I'm looking for my rights in this situation and I would claim irretrievable breakdown of the marriage. If i could feel certain that I can just make a sworn statment and start the divorce proceedings.

My fear is that I have to make the statement and have it on file for 6 months and then I can commence the divorce.