New York Divorce Law
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Divorce Residency Essentials to Get Divorce in New York
If only one spouse resides in New York at the time of filing the divorce, the residency requirement is two years. However, the requirement is reduced to one year if:
- The spouses were married in New York and either spouse is still a resident;
- They once resided in New York and either spouse is still a resident; or
- The grounds for divorce arose in New York.
In addition, there is no residency time limit requirement if both of the spouses were residents of New York at the time of filing the divorce and the grounds for divorce arose in New York. The divorce may be filed for in a county where either spouse resides. [Consolidated Laws of New York Annotated; Domestic Relations Law, Article 13, Sections 230 - 231 and New York Civil Practice Laws and Rules; Rule 503].
Reasons for Divorce in New York
There are mainly two reasons of divorce in New York those are fault and general. In order to file for divorce in New York, the proper grounds must be established. Both spouses are involved in establishing these grounds, and both must substantiate and agree upon these, unless the divorcing spouse is trying to prove otherwise to the court.
No-fault reasons for divorce in New York include:
- Living separate and apart for one year under the terms of a separation agreement which is in writing and signed and notarized [proof of compliance with the terms of the settlement agreement must be submitted when the divorce is filed. In addition, a copy of the agreement or a brief memorandum of the agreement must be filed in the office of the clerk of the county] or
- Living separate and apart for one year under the terms of a judicial separation decree. [Consolidated Laws of New York Annotated; Domestic Relations Law, Article 10, Section 170 and Article 13, Section 230].
- The relationship between husband and wife has broken down irretrievably for a period of at least six months. [Consolidated Laws of New York Annotated; Domestic Relations Law, Article 7, Section 170].
General reasons for divorce in New York include:
- Abandonment for one year;
- Imprisonment for three or more consecutive years; and
- Cruel and inhuman treatment. [Consolidated Laws of New York Annotated; Domestic Relations Law, Article 10, Section 170].
Custody of the Children in New York
Joint or sole child custody is to be determined according to the best interests of the child. Neither parent is entitled to a preference. There are no factors specified in the statute. [Consolidated Laws of New York Annotated; Domestic Relations Law, Article 13, Section 240 and New York Case Law].
Property Distribution in New York
New York is an “equitable distribution” state. Separate property, including property acquired before a marriage and any gifts or inheritances whenever acquired, is to remain with the spouse who owns it. Separate property also includes any increase in value or property acquired in exchange for separate property. Marital property acquired during the marriage will be equitably divided between the spouses, based on the following factors:
- The contribution of each spouse to the acquisition of the marital property, including the contribution of each spouse as homemaker;
- The income and value of each spouse’s property at the time of the marriage and at the time of filing for divorce;
- The probable future economic circumstances of each spouse;
- The length of the marriage;
- The age and health of the spouses;
- The amount and sources of income of the spouses;
- The probable future financial circumstances of each spouse;
- The potential loss of inheritance or pension rights upon dissolution of the marriage;
- Whether the property award is instead of or in addition to maintenance;
- Custodial provisions for the children and the need for a custodial parent to occupy the marital home;
- The type of marital property in question [whether it is liquid or non-liquid];
- The impossibility or difficulty of evaluating an interest in an asset such as a business, profession, or corporation and the desirability of keeping such an asset intact and free from interference by the other spouse;
- The tax consequences to each party;
- The wasteful dissipation of assets;
- Any transfer of property made in anticipation of divorce;
- Any equitable claim that a spouse has in marital property, including joint efforts and expenditures, and contribution and services as a spouse, parent, wage earner, and homemaker, and to the career and career potential of the other spouse; and
- Any other factor necessary to do equity and justice between the spouses. Marital fault may be considered. Financial disclosure of assets and income are mandatory. [Consolidated Laws of New York Annotated; Domestic Relations Law, Article 13, Section 236, Part B].
New York Spousal Support Guidelines
Either spouse may be awarded maintenance, without regard to marital fault, based on a consideration of the following factors:
- The income and property of the spouses, including any marital property divided as a result of the dissolution of marriage;
- The length of the marriage;
- The age and health of both parties;
- The present and future earning capacity of both parties;
- The need of one party to incur education or training expenses;
- The existence and duration of a pre-marital joint household or a pre-divorce separate household;
- Acts by one party against another that may have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to, acts of domestic violence as provided in section 459a of the social service law;
- Any transfer of property made in anticipation of divorce;
- The wasteful dissipation of marital property;
- The contribution of each spouse to the marriage and the career of the other spouse, including services rendered in homemaking, childcare, education, and career-building of the other spouse;
- The tax consequences to each spouse;
- The ability of the spouse seeking support to become self-supporting and the time and training necessary;
- Any reduced lifetime earning capacity as the result of having foregone or delayed education, training, employment, or career opportunities during the marriage;
- The presence of children of the marriage in the respective homes;
- The care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party's earning capacity;
- The inability of one party to obtain meaningful employment due to age or absence from the workforce;
- The need to pay for exceptional additional expenses for the child(ren), including but not limited to, schooling, day care, and medical treatment;
- The equitable distribution of marital property;
- The loss of health insurance benefits upon dissolution of the marriage, and the availability and cost of medical insurance for the parties; and
- Any other factor the court deems just and equitable. [Consolidated Laws of New York Annotated; Domestic Relations Law, Article 13, Section 236, Part B].
New York Child Support Guidelines
Health insurance coverage may be ordered to be provided. Marital misconduct of either parent is not to be considered. There are specific Child Support Guidelines in the statute and which are presumed to be correct, unless there is a showing that the amount of support would be unjust or inappropriate. The factors to be considered are:
- The financial resources of the child and the parents;
- The standard of living the child would have enjoyed if the marriage had not been dissolved;
- The physical and emotional health of the child and any special needs or aptitudes of the child;
- The financial resources, needs, and obligations of both the noncustodial and the custodial parent;
- The tax consequences to each parent;
- The non-monetary contributions that the parents will make towards the care and well-being of the child;
- The educational needs of either parent;
- Whether one parent’s income is substantially less than the other parent’s;
- The needs of other children of the non-custodial parent;
- If the child does not receive public aid, any extraordinary expenses required for the non-custodial parent to exercise visitation rights; and
- Any other relevant factors. Security may be required for the payments. [Consolidated Laws of New York Annotated; Domestic Relations Law, Article 13, Sections 236-Part B, 240, and 243 and New York Case Law].
There are no legal provisions in New York for divorce mediation.