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Child
Support Profile - profile the state's child support laws. Easy to use
table layout includes information on UIFSA, reciprocity, age of majority (emancipation),
statute of limitations, income withholding, paternity, support order establishment,
support enforcement, modification and review/adjustment. From the the Federal
Office of Child Support Enforcement's "Interstate Roster and Referral Guide."
Child Support Enforcement - homepage of NY state's DCSE
Additional Resources:
NY State Bar Associations - general information Uniform Uncontested Divorce Packet - from the New York State Office of Court Administration. Only for those whose divorce is expected to be uncontested. Children's Rights Council - national nonprofit organization based in Washington, DC that works to assure children meaningful and continuing contact with both their parents and extended family regardless of the parents' marital status.
Legal overview Divorce in New York requires that you meet one of the four grounds for divorce. It is important to note that New York, unlike most states, does not have a no-fault option for divorce. Read our detailed legal summary of New York divorce procedure including grounds, living apart and separations, separation agreements, separation decrees, annulment, equitable distribution, maintenance, and child support.
General
A marriage can only be dissolved by a court, by either a divorce or an annulment. It also may be altered by a decree of separation granted by New York courts. In any case, there must be a proceeding in the Supreme Court in which the person seeking the divorce, separation decree or annulment must prove "grounds."
How does one obtain a divorce, separation decree or annulment in New York State? First of all, "grounds" or valid reasons prescribed by law must exist and be proven to the court, even if both parties agree that the marriage relationship should be altered. New York will not grant a divorce for incompatibility," "irreconcilable differences," or for a dead" marriage.
New York does not have a "no-fault" divorce except where the parties have been separated pursuant to a separation decree or a separation agreement for more than a year and the party seeking the divorce has substantially complied with the terms of the separation decree or the separation agreement.
Grounds for Divorce
Four of the "grounds" in this state are based on the fault of one of the parties-cruel and inhuman treatment, abandonment for one or more years, imprisonment for three or more years, and adultery. The other grounds-one year of living apart under a separation agreement, and one year of living apart under a separation decree granted by a court, afford New Yorkers a no-fault" divorce, in which neither spouse is judged to be at fault.
1. Cruel and Inhuman Treatment
Cruel and inhuman treatment can involve either physical or mental cruelty. To be a reason for divorce, the treatment must have such a serious effect on the physical or mental health of the divorce-seeking spouse, that it is not safe or proper for the parties to continue the marriage. Mere incompatibility between husband and wife is not enough to obtain a divorce in New York.
Some examples of acts that courts have held to be cruel and inhuman treatment for divorce purposes include physical attacks upon a spouse; constant screaming, profanity or other verbal abuse; gambling away the household funds; staying away from the house too often without an explanation; going out with another man or woman; and wrongfully accusing the other spouse of adulterous relations with another man or woman.
Each case, however, stands on its own facts. The court decides whether or not these facts justify a dissolution of the marriage. Generally, the acts or conduct on which the divorce is based must have occurred within five years prior to the commencement of the action to be considered by the court.
2. Abandonment for One or More Years
Abandonment means that your spouse has intentionally left you without your consent, and of his or her own accord and without justification. You must also prove that your spouse had no good reason for leaving (such as your ill treatment or your consent), that your spouse left with the intention of never returning, and that your spouse did not offer in good faith to return. Unjustified refusal by a spouse to have sexual relations is also considered a "constructive abandonment" and may also be considered cruel and inhuman treatment. Abandonment must exist for a continuous period of at least one year before the action is started to be a basis for divorce in this state.
3. Imprisonment for Three or More Years
Divorce on the grounds of imprisonment for three or more years means that the defendant actually must have served three years or more in prison before an action can be brought; even if the conviction is later overturned or reversed.
4. Adultery
Bringing an action on the ground of adultery, especially if your spouse is not going to contest it, is not a simple matter. The proof of adultery here is difficult- you are not permitted to testify against your spouse, and you must have a witness ready to convince the court that your mate did engage in sexual relations with another person. There are four defenses to the charge of adultery, and if any of these are proven, the court will deny the divorce:
Procurement-Procurement means that one spouse actively encouraged the other to commit adultery.
Condonation-Having sexual relations with your spouse after discovery of adultery is an absolute defense.
Statute of Limitations- You must file for divorce five years from your discovering the first act of adultery.
Recrimination"-This defense means that you, too, were guilty of adultery.
Living Apart and Separations
Living apart, without a formal written agreement of separation or a court judgment of separation, is not recognized as a ground for a New York State divorce, no matter how long you continue to live separately.
Regarding separations, there are only two valid ways to dissolve a marriage. Each requires separation of one or more years. The law requires that you and your spouse live apart either under a written contract of separation or under a court judgment of separation and the spouse seeking the divorce must have substantially complied with the terms of the agreement or judgment.
Separation Agreement
A separation agreement is a detailed contract which should be prepared by attorneys, where the parties agree to live separate for the rest of their lives. It should set forth the respective rights and duties of husband and wife with respect to the custody and access to children, support payments, distribution of property, and all other matters pertaining to the marital relationship. The same attorney is absolutely prohibited from representing both spouses no matter how "friendly" the matter may appear on the surface. At the end of one year from the date of the agreement, either spouse may sue the other for a no-fault divorce.
All that must be proven to the court is that the agreement was duly executed and acknowledged and was properly filed; that the spouses have in fact lived apart during the period of the agreement up to the time of the divorce action; and that the plaintiff has substantially complied with the terms of the separation agreement. The court will grant a divorce based on that proof.
Separation Decree
Another form of separation is through a judgment of separation granted by the Supreme Court. This judgment is based on the same four "fault" grounds as for divorce. However, the abandonment may be for less than a year. In addition, "non-support" is a ground for a decree of separation, although not for a decree of divorce.
One year after the filing of the court's judgment of separation, either party may sue for a "no-fault" divorce, based upon one year of living apart. A divorce does not occur automatically after a year. Court action must be taken.
Annulment
If either spouse is incurably incapable of having sexual intercourse, the marriage may be annulled. A marriage between persons under the age of 18 may be annulled, at the discretion of the court, if the spouse under 18 wants an annulment. If, after marriage, either partner becomes incurably insane for five years or more, the marriage can be annulled. However, the sane spouse may be required to support the insane spouse for life.
The parties must knowingly consent to the marriage. It may be voided if either spouse consents to marry as a result of the force or duress of the other spouse; or if either spouse cannot understand the nature, effect and consequences of marriage.
It may also be annulled where the consent was obtained by fraud, provided the fraud was such that it would have deceived an ordinarily prudent person and was material to obtaining the other party's consent. The fraud must be such as to go to the essence of the marriage contract. Only the injured spouse can obtain the annulment on lack of consent. However, cohabitation (sexual intercourse) evidencing forgiveness is an absolute defense.
Special Proceeding to Dissolve a Marriage
Where your spouse is absent for five years, you may bring a special proceeding in Supreme Court to dissolve the marriage. You must prove that your spouse has been absent for five successive years, without being known to be alive; that you believe that your absent spouse is dead; and that you made efforts to discover that he or she is still living and no evidence was found. After the dissolution becomes final, the reappearance of your absent spouse does not revive your marriage.
Equitable Distribution Law
Division of assets and the fixing of support are covered by the Equitable Distribution Law. The statute is founded on the philosophy that a marriage, especially one of long term duration, is an economic as well as a social partnership. Two classes of property were created, known as "marital" and "separate" property. Marital property is all property acquired during the marriage (regardless of how title is held), except inheritance, gifts from third persons, compensation for personal injuries and property acquired after the start of a divorce action.
Marital property and marital debts are distributed between spouses in a dissolution action on flexible and equitable principles. Valuation of marital property may require expert advice. Alimony under the statute is referred to as "maintenance" and based upon factors set forth in the statute may be permanent or limited to duration. The distribution of marital property and the award of support as a result of matrimonial negotiations or proceedings may involve complicated and vital tax consequences to both parties which require expert advice.
Spousal Maintenance
Spousal maintenance may be awarded to either party based upon a number of factors including the prior standard of living of the parties, the present and future earning capacity of the parties, and the ability of the party seeking maintenance of spousal maintenance to become self-supporting. The spousal maintenance awarded may be for a limited period of time or for an indefinite period of time. The parties may, by written agreement, waive the right to spousal maintenance.
Child Support
The basic child support obligation to be paid by the non-custodial parent is based upon a percentage of the combined parental income. For one child the amount is 17%, for two children 25%, for three children 29%, and for four children 31%. In addition to the basic child support obligation, the non-custodial parent may be obligated to pay for a portion of the child care expenses related to the custodial parent's employment or education which would lead to employment. Health care expenses for the children are apportioned between the parents based upon their combined parental income. The non-custodial parent also may be directed to pay for educational expenses. However, if the amount of the basic child support obligation is unjust or inappropriate, the non-custodial parent's pro rata share of the child support obligation may be determined by other factors and not by the percentages mentioned above.
The parents may avoid the use of the percentages in determining the amount of child support by executing an agreement setting forth the amount of child support which they believe to be fair. An agreement determining the amount of child support must satisfy certain technical provisions of the Child Support Standards Act. A lawyer can help the parties comply with these technical provisions. Neither parent has any obligation to support a child once the child reaches 21 years of age. Child support may end before 21 years of age under certain circumstances such as the gainful employment of the child or the child's willful refusal to maintain a relationship with the noncustodial parent. Child support will be awarded by a Family Court as part of a child support proceeding or by Supreme Court as part of a divorce, separation, or annulment proceeding. Even if there is no matrimonial judgment awarded, the court will make an award of child support to the custodial parent.
NOTE: This information, which is based on New York law, is intended to inform, not to advise.
Information supplied by:
NEW YORK STATE BAR ASSOCIATION
One Elk Street, Albany, N.Y. 12207
(518) 463-3200
Copyright 1997 by New York State Bar Association
