Residency Requirements and Grounds for Divorce
To file for a divorce in New York:
- You must have been married in the state and either you or your spouse must have lived in New York for one year before filing for divorce
- You and your spouse lived together in the state and either of you lived there for a year before filing for divorce
- Your grounds for divorce occurred in the state, and either of you lived there for a year before filing
- The cause occurred in the state and both you and your spouse are state residents when your case is filed
- Either you or your spouse have lived in New York for two years prior to the filing of the divorce
Grounds for divorce are:
- Cruel and inhuman treatment
- Abandonment for at least one year
- Your spouse has been in prison for at least three years
- You and your spouse have lived apart at least one year under a written separation contract or under a court judgment of separation and the spouse seeking the divorce has substantially complied with the separation terms
New York law provides for no-fault divorce as of October 2010. One spouse claims the irretrievable breakdown of the marriage for at least six months. This means you can no longer get along, and there's no reasonable chance to continue your marriage. A divorcing couple or the court must resolve the issues of property division, spousal support and child custody and support before the divorce is finalized.
A divorce case begins when one spouse files an "Action for Divorce" with the Supreme Court in the county where one spouse resides. The other spouse is then served with the paperwork and has time to respond. If you and your spouse agree on property and debt division, as well as child custody and child support matters, the divorce can be finalized without a trial. The court schedules a hearing if you disagree on the issues.
After your case is filed, either party can request temporary assistance from the court in the form of temporary custody and child support orders, and orders to determine who pays community debts on a temporary basis.
Dividing the Property
In New York, assets and debts acquired during your marriage - called "marital property" - will be divided "equitably" when you divorce. This means a fair, but not necessarily equal division.
Spouses keep their separate property, which includes property you acquired before marriage, gifts and inheritances or assets such as personal injury awards. Income from or increases in value to separate property is also separate property.
In making an equitable division of property, judges consider many factors, including:
- The spouses' incomes, both at the time of marriage and at the filing of the divorce
- Marriage length
- Spouses' ages and health
- Need of the custodial parent to live in or own the family home and/or household items
- Any loss of inheritance or pension rights
- Alimony (called "maintenance") awards
- Services of either spouse as a parent, wage earner or homemaker
- The liquid or non-liquid nature of the property
- Likely future financial circumstances of the parties
- Tax consequences to either party
- Waste or destruction of property by either party
Be prepared with information on your property, including when you purchased it, an estimate of value, and details such as account numbers, serial numbers and so forth. You'll be ready to meet with a New York divorce lawyer and it can save you a lot of time and money.
A court can order alimony - called "maintenance" - in New York. A court will generally consider such factors as:
- The length of the marriage
- The conduct of the parties during the marriage
- Age and health of the parties
- Occupations of the parties and their incomes and sources of income
- Vocational skills and employability of the parties
- Assets and liabilities of the parties
- Any special needs of the parties
- The opportunity of the parties to acquire future income and assets
A court can order temporary maintenance while the divorce is pending. Most maintenance is ordered for a specific length of time.
Child Custody and Visitation
In New York, the court will make child custody decisions based on what is in the "best interest" of the child if the parents can't come to an agreement. In deciding which parent should have primary custody, the court will consider:
- The availability of parents to the child
- The physical and emotional health of the parents
- Evidence of child abuse or neglect
- The home environments of both parents
- A parent's willingness to encourage the child's relationship with the other parent
- The preferences of the child, if the child is mature enough to make his or her wishes known
- Who has traditionally been the child's primary caretaker
- Any agreement between the parents
After a custody order is signed by the judge and filed with the court clerk, both parents are bound by it. If a parent is denied court-ordered access to a child, he or she may bring the issue back before the court. The judge may decide to modify the visitation order, order makeup visitation for the time missed and order counseling or mediation.
In New York, child support is based on state guidelines, which factor in the combined income of the parents and how many children the parent is responsible for supporting. For one child, the amount is 17 percent of the combined parental income; for two children, it is 25 percent; for three children, it is 29 percent. If necessary, a court can set aside a portion of joint or separate assets of the parties in a separate trust or fund for the support and education for the parties' children.
A New York child support order can be modified if there has been a change in financial circumstances. Examples of this would include:
- A big increase or decrease in either parent's income
- The child spending a lot more time with either parent
- The child being several years older or having special financial needs such as schooling or medical expenses
Questions for Your Attorney