Divorce In New York

Sherrie Bennett

en Español

  • Residency Requirements and Grounds for Divorce

  • Dividing the Property

  • Alimony

  • Child Custody and Visitation

  • Child Support

    Residency Requirements and Grounds for Divorce

    To file for a divorce in New York:

    • You must have been married in New York and either you or your spouse must have lived in New York for one year prior to filing for the divorce, or
    • You and your spouse must have lived together in New York, and either you or your spouse must have lived in New York for one year prior to filing for the divorce, or
    • Your grounds for divorce occurred in New York, and either you or your spouse lived in New York for one year prior to filing for the divorce, or
    • Either you or your spouse have lived in New York for two years prior to the filing of the divorce

    In order to get a divorce in New York, you must prove:

    • Your spouse has treated you so cruelly and inhumanely that it has had a serious effect on your physical or mental health and it's not safe or proper for the marriage to continue, or
    • Your spouse has abandoned you for at least one year, or
    • Your spouse has been imprisoned for at least three years, or
    • Your spouse committed adultery, without your encouragement, within the past five years, and you did not have sexual relations with your spouse after learning of the infidelity, or
    • 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 terms of the agreement or court judgment.

    The legal divorce process begins when one of the spouses files a "Action for Divorce" with the Supreme Court. The other spouse is then served with the paperwork and given time to respond. If the parties are in agreement about property and debt division, as well as child custody and child support matters, the divorce can be finalized without a trial. If the parties can't come to an agreement, the court will set a time for a hearing, usually some time in the future.

    After the Action for Divorce has been 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.

    But not all property is considered "marital property":

    • For example, assets you had before you married may be considered "separate property" if you kept that property separated from property acquired during the marriage.
    • The income produced by a separate property investment may also be separate property, as long as it hasn't been "commingled" - mixed together with marital property

    In dividing the parties "equitably," judges will consider:

    • The income of the parties both at the time of the marriage and the time of the filing of the divorce
    • The length of the marriage
    • The age and health of the parties
    • The need of a custodial parent to occupy 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

    It's important to collect all the information you can about all your property, including when you purchased it, approximately how much it is worth, and details such as account numbers, serial numbers and so forth. Collecting this information before you see a New York divorce lawyer can save you a lot of time and money.

    Alimony

    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.

    Child Support

    In New York, child support is based on the combined income of the parents and how many children the parent is responsible for supporting. For one child, the amount is 17% of the combined parental income; for two children, it is 25%; for three children, it is 29%. 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

    Related Web Links:
    - New York Divorce Forms
    - New York Domestic Relations Select DOM
    - New York Child Support Calculator
    - New York Child Support
    - New York State Profile
    - Family Law: Selecting a Good Lawyer
    - New York Family Law & Divorce message board for more help
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