New York Divorce
New York’s Divorce Laws
Legal definitions of separation and divorce
Separation – This is where the husband and wife will live separate from each other as if unmarried. This can be accomplished legally in two ways: (1) by Decree or Judgment of Separation by the Court, or (2) by the husband and wife signing a Separation Agreement. Both of these options allow for the parties to later obtain a divorce so long as there has been a year or more that has passed since the issuance of the Decree or Judgment of Divorce or the date the Separation Agreement was signed.
Divorce – This is the legal dissolution of a marriage. With a divorce, the parties are legally determined to no longer be husband and wife with all of the rights and responsibilities that are associated with a marriage. New York has several grounds for divorce that are available to a husband or wife and in October of 2010, New York became the last state in the United States to have some form of No-Fault divorce. See the section on Grounds for Divorce for more information.
New York has multiple residency categories that a party can rely upon to bring an action for divorce, separation, annulment or nullity of a void marriage thereby allowing the New York courts to have jurisdiction to decide the matter. These requirements are as follows:
1. Parties were married in New York and either party is a resident of New York when the action was commenced and has been a resident for a continuous one (1) year period immediately prior to the commencement of the action. OR
Grounds for divorce
There are multiple grounds that can be alleged in New York in a divorce action. However, in October of 2010 New York State became the last state to finally enact a No-Fault divorce ground. Therefore, it is likely that most, if not all, future divorce actions will be brought under this ground, although all of the other remaining grounds are still available. The grounds for divorce in New York are:
(1) Cruel & inhuman treatment;
Paragraph 7 above is the No-Fault ground for divorce in New York and what this essentially means is a divorce will be granted on that ground only after the parties or the court has resolved ALL issues in the marriage. This is different from all of the other grounds for divorce in New York which requires that the party prove the ground for divorce before a final determination will be made on all of the other economic and custody issues of the marriage.
Division of property
New York does what is known as an equitable distribution of the marital property of the parties in a divorce action. Marital property is property acquired during the course of the marriage (date you were married through the date the action was commenced). All other property acquired prior to the marriage or after the marriage is generally going to be considered separate property, unless it can be shown that the property has been what is referred to as “transmuted” from separate property to marital property. This can happen when the party who owns the separate property commingles it so much with marital property that it essentially becomes marital property, i.e. the other spouse having responsibility to manage the property. This is a complex area and there are many ways in which separate property can become marital property.
With respect to the distribution of marital property, New York court’s generally try to divide the marital property almost evenly between the parties, although it does not have to be exactly equal. The court has discretion to award one party a higher share of the marital property than the other party receives. When making an equitable distribution determination of the marital property, the court will consider the following factors:
(a) the income and property of each party at the time of marriage, and at the time of the commencement of the action;
Custody determinations in New York are based upon the best interests of the child. This is the standard the court must apply when making its decision. Typically, the parties reach a resolution on a custodial and parenting time arrangement prior to a court making a determination. If this resolution is reached in the context of a child custody proceeding, the resolution is placed upon the record and is approved by the court. There are several forms of custody that exist:
(1) sole legal (where one parent makes all of the major decisions involving the child(ren) on his/her own without the need to consult with the other parent),
Custody matters are usually the most contentious part of any family court and divorce proceeding.
Child support is the financial support that the non-custodial parent must pay to the custodial parent for the care and support of the parties child(ren). Therefore, the custody determination will have a direct affect on what the child support arrangement will be. The non-custodial parent is the parent who has less than 50% of the physical custodial time with the child(ren). However, in cases where the physical time each parent has with the child(ren) is exactly 50%, then the non-custodial parent is the parent who earns less income.
In New York, there is a standard application for the amount of child support to be paid by the non-custodial parent. This is known as the Child Support Standards Act. The amount of child support to be paid by the non-custodial parent is determined by multiplying the combined parental gross income by the specified percentage based upon the number of children who are entitled to receive support. In New York, child support is to be paid until the child(ren) reach(es) the age of twenty-one (21). The percentage to be applied is: (1) 17% for 1 child; (2) 25% for 2 children; (3) 29% for 3 children; (4) 31% for 4 children, and (5) no less than 35% for 5 or more children.
This non-custodial parent then pays his prorated share of that amount, which is determined by figuring each party’s prorated share of the combined parental income. This prorated share (percentage) is also what is used to determine each party’s obligation towards such child related expenses as day care costs, and health insurance costs. The court has the ability to modify the non-custodial parents prorated share of the child support obligation if the court determines that share to be unjust or inappropriate.
Spousal support (also referred to as alimony and maintenance) is determined based upon the needs of the party seeking such support from the other party. The factors that the court is to consider when making a determination for spousal support are:
(1) any income or assets of the parties including the property award;
In October 2010, New York passed legislation that sets forth a framework for the court to use when determining the request by the lesser income earning spouse for temporary maintenance. Absent a written agreement by the parties that address the issue of spousal support, the court will make an award of temporary maintenance to the lower income earning spouse based upon application of the guideline calculation on the first $500,000.00 of income. This maintenance award is a presumptive award (meaning it will be granted) unless the court determines the award to be unjust or inappropriate, in which case the court can adjust the presumptive award accordingly based upon consideration of the following factors:
(a) the standard of living of the parties established during the marriage;
Source: Cordell & Cordell New York
The State Resource pages are provided for informational purposes only. Do not take any actions based upon the information contained within the State Resource pages without first consulting an attorney licensed in your state. We at DadsDivorce.com strive to keep our information up-to-date; however state laws are not static and subject to change without notice.