New York Divorce

Residency Requirement

In order to get a New York divorce, you must satisfy the residency requirements by living in New York for one year. But, if you were married outside of New York, then you must live in the state for two years before filing for divorce.

Grounds For Divorce

Although Courts in New York do not consider which, if either, party is at fault when dividing property or setting child support, it is the one state in the nation that does not allow divorces without grounds. There is no “no-fault divorce” in New York, instead, you must have one of the following grounds for divorce:

• Adultery
• Constructive Abandonment for at least one year
• Cruel and Inhuman Punishment
• Imprisonment of a spouse for three or more years
• Living apart under a decree or judgment of separation, or a under a written agreement of separation, subscribed by the parties and acknowledged or proved in the form required to entitle a deed to be recorded, for a period of more than one year.

Even if you and your spouse agree to an uncontested divorce, you must have one of the grounds. Without proper grounds, New York courts will deny you a divorce!

Uncontested Divorce

If the spouses have no children from the marriage and agree on the important terms in the New York divorce case, such as property division and alimony, then the court will grant an uncontested divorce. This is usually a quick process and an attorney may not be necessary. An uncontested divorce is recommended only when there are no children involved.

How To Begin

First, the spouse requesting the divorce must file and serve upon the other spouse a Verified Complaint. This document must state any grounds for the divorce and specify any other issues such as property division, spousal support, or child custody.

Then, the court will require that the spouses attend a Preliminary Conference. At the Preliminary Conference, the spouses must discuss the issues raised in the Verified Complaint and settle any temporary matters if possible. The temporary matters that are often addressed in the Preliminary Conference are who will continue to live in the home, who will provide daily care for any children, and who will pay which expenses.

At the Preliminary Conference, the spouses should also discuss exchanging of the following information to help the New York divorce process move forward:

• Net worth statements
• Appraisal of pensions
• Appraisals of real estate
• Other documents requested
• Interrogatories (formal written questions)
• In person questioning before any trial (called depositions)

After the judge makes a decision, a judgment of divorce is formally signed by the court. Before the judgment is signed, the parties are still married, even if they have already gone though a trial.

Dividing Property

New York uses the "equitable distribution" system to divide property, unless a written settlement agreement between the parties is achieved. If spouses can't agree on the dividing the property, then the judge will make the decision.

All property in the New York divorce case is either separate property owned by the individual, or marital property owned by the married couple.

Marital property is all property earned or acquired during the marriage. If one spouse stays home to care for the children while the other spouse earns the household income and purchases all property for the household, all of that property will be divided by the court.

Separate property is that owned by one party before the marriage. Separate property is awarded to that individual, however, the increase in value of separate property that occurs during the marital period may be divided under the equitable distribution system. One exception to the normal rule that separate property must predate the marriage: separate property also includes gifts or inheritances received during the marriage.

Alimony

Spousal Maintenance is payment for the support of the other spouse. The Court awards alimony after considering the spouses’ financial situation, earning capacity, income, and the circumstances of the marriage. For example, if one spouse stayed home to care for the household while the other spouse earned the income supporting the household, then the court will generally require the working spouse to continue supporting the other spouse in the same manner.

Alimony will end when the spouses agree, one spouse dies, or the receiving spouse remarries.

Child Support

New York's Child Support Standards Act provides child support guidelines and enforcement. Child support is calculated by examining the incomes of both parents and the child’s basic monthly living expenses.

Child Custody

New York divorce law does not automatically give custody of children to any one parent. It is often assumed that only the mother will receive custody of the children. But, that is not so. Instead, the court only considers what is in the best interest of the child.

The court will consider such factors as who took primary care of the child during the marriage, scheduled doctors’ appointments, and attended school meetings. Generally, the court will allow the non-custodial parent ample visitation with the child and even award joint custody. Visitation is often only limited in circumstances where there is abuse.