Divorce in New York
What is Divorce in New York
Divorce is the conclusive legal dissolution of a marriage ordered by a court. Divorce in New York may be contested or uncontested. In contested divorces, spouses disagree on issues such as fault, child custody and support, alimony, and the division of marital assets and debts. When these issues cannot be resolved among spouses, they hire divorce attorneys and have a family court judge make the decisions on their behalf. In uncontested divorces, spouses reach divorce settlements through other means besides court interventions. A divorce settlement may even be reached without requiring the services of a divorce attorney. Hence, uncontested divorces are finalized quicker than contested divorces.
In 2019, for every 1,000 women aged 15 and over, 7.6 got a divorce in the United States. Per a United States Census Bureau statistics, the divorce rate in New York is lower than in other states in the United States, with only 6.1 women aged 15 and over getting a divorce in 2019. Note, however, that the Census Bureau figures account only for persons who did not remarry in the same year they got divorced. According to a New York Department of Health (NYDH) report, more than 25% of New York marriages end in divorce before 5 years, while approximately 20% end in a divorce between 5 and 9 years. In all, nearly half of New York marriages end in divorce within a decade. While New York divorce records are typically available to interested and eligible members of the public, they may be restricted from public access if the parties involved petition the court to its effect.
Divorce Laws in New York
Until 2010, New York retained a history of being conservative on marriage laws with no-fault divorce unavailable, unlike many other states. On August 15, 2010, New York divorce laws were revised and Governor David Paterson signed a no-fault divorce into law. Prior to signing the law, the state only recognized divorces upon fault-based grounds or separation. Now, both no-fault and at-fault divorces are allowed in the state. For a no-fault divorce, you do not need to state a reason for the divorce. The sole stipulation is that you indicate that the marriage has irretrievably broken down for at least six months. In order to get the divorce, you and your spouse will also be required to resolve issues such as child custody and support, assets, debts, and alimony.
Per Section 170 of the New York Domestic Relations Law, a divorce may be obtained for one or more of the following causes:
- Irretrievable Breakdown: Your relationship with your spouse has been irretrievably damaged for at least six months, which implies it is damaged beyond repair. The court cannot grant you a divorce on this premise before property, debts, child custody, support, and visitation issues as well as spousal support have been resolved or determined by the court.
- Cruel and inhuman treatment: A spouse's cruel treatment may also be grounds for a divorce. This treatment must indicate that your physical or mental health may be at risk if the both parties continue living together. However, if the most recent inhuman treatment occurred more than five years ago, and your spouse opposes the dissolution, you cannot divorce on this premise.
- Abandonment: For abandonment to apply, your spouse must have deserted you for at least a year. Furthermore, your spouse must have ejected or left you with no intention of returning.
- Imprisonment: The imprisonment grounds apply if your spouse is imprisoned for three or more years. However, you cannot divorce for this reason if your spouse was released more than five years ago. Also, the incarceration must have begun after your marriage.
- Adultery: Your spouse must have been caught in the act of adultery for this grounds to apply. However, adultery is not grounds for divorce if you encourage your spouse to commit adultery, forgive the offending spouse by having sexual relations after discovering the adultery, or commit adultery yourself. Additionally, you cannot divorce for adultery if it has been more than five years after the act was exposed. You cannot testify against yourself to establish adultery; hence, you must have a witness testify on your behalf.
- Judgment of Separation: For this grounds to apply, you and your spouse must have not lived together for a minimum of one year as a result of a court-ordered "Decree of Separation" or "Judgment of Separation". You must abide by all of the terms of the decree or judgment. A Judgment of Separation is uncommon since it needs equivalent evidence to that required for divorce. The majority of individuals bypass the Judgment and go straight to divorce.
- Separation Agreement: Here, you and your spouse must have not lived together for at least one year as a result of a formal "Agreement of Separation". Both parties must sign this agreement in front of a notary, and it must adhere to specific legal requirements if you reside in New York. If those standards are not followed, the agreement is void, and it is thus prudent to have it reviewed by a lawyer.
Separation vs. Annulment vs. Divorce
For persons looking for alternatives to divorce, an annulment or separation may be a suitable option for consideration.
In New York, a married couple may seek a legal separation instead of filing for divorce when they no longer intend to live together. Most of the issues settled in a divorce are also settled in a separation. However, unlike a divorce, the parties to a legal separation remain legally married and are not legally permitted to remarry.
When a couple separates in New York, they may enter into a Separation Agreement - a contract that details the separation conditions, including spousal support, child custody, child visitation rights, and property distribution. The court may enforce the agreement if one party fails to comply, and it may be included in the divorce judgment if the couple chooses to divorce later. The separation agreement must be voluntary and signed in front of a notary by the couple.
Pursuant to New York Domestic Relations Law §140, an annulment is a court declaration stating that a marriage was never legally valid. An annulment, unlike a divorce, demonstrates that the marriage is not legally recognized, and the grounds for annulment vary from those for divorce. To get an annulment, you must demonstrate one of the following:
- Bigamy. This occurs if a spouse remarries before a prior marriage has been officially dissolved.
- Neither spouse was able to have sexual relations at the time of the marriage.
- After marriage, either spouse suffers from incurable insanity for at least 5 years. A spouse may petition the court for annulment if a doctor or the court determines that the other spouse has been mentally ill for at least five years. Additionally, a concerned family member may petition the court for annulment on behalf of the incapacitated spouse.
However, if the mentally ill spouse recovers and the couple continues to cohabitate as a married couple, the marriage is considered valid and the court waives the grounds of mental illness, even if the mental disease recurs.
- Due to mental impairment, the spouse is unable to comprehend the nature, impact, and consequences of marriage.
- One spouse consented to marriage under coercion or duress from the other.
- Deceit. This is the most common ground on which marriages are annulled. Here, the consent to marry must have been obtained by fraudulent means that would have misled an ordinarily prudent person and was essential to securing the other party's agreement. The concealment or suppression of a material fact may be considered fraud. Sexual relations demonstrating forgiveness may be used as a defense against annulling a marriage.
Aside from legal annulment, several religious organizations in New York permit private religious annulment of marriage. The procedures in annulling such marriages are stipulated by the custodians of the religion.
A divorce is a legal order formally dissolving a marriage between a husband and wife before the death of either spouse. After the divorce proceedings are finalized, the parties are no longer legally bound to one another and may remarry or form a domestic partnership with another person.
A couple seeking divorce may file for a "no-fault" or "fault-based" divorce. A no-fault divorce occurs when one spouse applies for divorce without blaming the other spouse for the marriage's dissolution. Irreconcilable differences and loss of affection may lead to this sort of divorce. In a fault-based divorce, one of the spouses holds the other accountable for the divorce. Adultery, domestic violence, and drug and alcohol misuse are examples of grounds claimed in this sort of divorce.
Divorce and Property in New York
In a New York divorce proceeding, both spouses will be required to disclose their incomes and obligations to the court. When a judge grants a divorce, the couple's property will be split equitably (though not usually evenly) pursuant to Section 236 of the New York Domestic Relations Law.
In the equitable distribution of properties in a New York divorce, the state distinguishes between two categories of properties: marital property and separate property. Marital properties acquired by spouses will be shared equitably. Marital properties are properties acquired by either spouse during the marriage, regardless of the name on the property. Pension and other retirement plans are included in the scope of marital property. The court will split the marital property acquired during the marriage. Separate property is any property possessed by a spouse prior to marriage and any inheritances, payouts, or gifts received during the marriage from someone other than the spouse.
According to the New York Domestic Relations Law § 236(B)(5)(d), the court will consider these factors in making an equitable distribution of properties in a divorce:
- Each spouse's property and income at the time of marriage
- The period of the marriage
- The health and ages of the spouses
- If there are children, whether the custodial parent needs the home or any other marital property while the children are growing up.
- Loss of pension benefits or inheritance
- The effort made by a spouse in the home (for example, a woman sacrificing a career for her husband's sake)
New York Divorce Attorney
You may assume that you can manage your divorce processes without the assistance of a lawyer, particularly if you and your spouse are on amicable terms. While it is feasible to discuss the terms of your divorce privately with your spouse, hiring an attorney provides peace of mind and an additional layer of protection for your interests throughout divorce proceedings. A New York divorce attorney can give crucial legal counsel, avoid delays, manage your obligations, and assist you in exploring alternative conflict resolution options.
Divorce is seldom an easy process. Certain divorce situations will go beyond the stage of negotiations and will escalate to litigation. If you are required to litigate your divorce in a New York court, it is prudent to presume that your spouse will have independent legal counsel. It is recommended that you follow suit.
While engaging an attorney to assist you with your divorce proceedings is recommended, you may be unable to afford legal representation owing to your financial circumstances. In rare instances, a court may order a high-earning spouse to pay the lower-income spouse's legal costs and expenses, allowing divorcing spouses with lesser earnings to have legal representation. If this is not possible, you may want to consider contacting a pro bono divorce attorney.
Pro bono divorce attorneys are essentially free divorce attorneys. They are lawyers who will take on your case for free. Since divorce is a civil legal proceeding, the court will not assign counsel to represent you, unlike criminal cases.
How to File for Divorce in New York
The following are the steps to file for divorce in New York:
- Meet the Residency Requirement: Residency requirements for filing for divorce are contained in Section 230 of the New York Domestic Relations Law. You have a few options to satisfy the residency requirement law in New York. First, either you or your spouse must have been living in New York State continuously for at least 2 years prior to filing for divorce. Secondly, either your or your spouse must have been living in New York State continuously for at least 12 months prior to the filing and you got married in the state, or resided in New York State as a married couple, or the grounds for divorce happened in the state. Thirdly, you and your spouse must be residents of the state on the day the divorce petition is filed and the grounds for the divorce occurred in New York State.
- Identify the Grounds for Divorce in New York: Aside from residency requirements, you must also be aware of legal reasons for getting a divorce in the state. New York recognizes seven grounds for filing for divorce.
- Gather the Required Information to Complete the Necessary Forms: This is required for uncontested divorces. To complete forms for uncontested divorces, you will need:
- Your name and address
- A copy of your certificate of marriage
- A copy of any agreement reached with your spouse, such as a settlement agreement
- A copy of Order for Protection, if applicable
- Prepare and File the Required Forms: New York courts compel divorcing parties to complete various forms. These forms differ depending on whether or not you have children. Persons who have been married for at least six months, and do not have any children under the age of 21, may prepare their papers using the DIY Uncontested Divorce Program. Use the paper Uncontested Divorce Packet if you and your spouse have children under the age of 21. After ensuring that your paperwork is accurate and complete, you must submit a Summons and a Verified Complaint with the county clerk's office. You will be required to purchase an index number at the county clerk's office, which must be added to your Summons and Verified Complaint.
The index number is the case number and costs $210. The total court and filing expenses for an uncontested divorce cost at least $335. This does not cover the cost of a lawyer, photocopies, notary fees, transportation, mailing, and process server fees, among other expenses. If you are experiencing serious financial difficulty and cannot file for divorce without financial assistance, you may seek a fee waiver for court expenses. You can obtain more information about fee waivers by contacting the county clerk.
Certain courts let you submit your filings electronically via the New York State Courts Electronic Filing System (NYSCEF). Consult the list of e-filing counties to determine if your county utilizes an e-filing system. Along with other forms that the county clerk may specifically require, you must submit the following:
- Notice of Automatic Orders
- Notice Concerning Continuation of Health Care Coverage
- Settlement Agreement, if you have one
- Serve the Applicable Forms to Your Spouse: You must inform your spouse about the divorce proceeding. Hence, you must ensure that they get all divorce paperwork personally. This is referred to as service. Service to the other spouse must be completed within 120 days of the date of filing your divorce forms.
Note that you cannot serve your spouse directly. Instead, you must assign another individual who is a New York resident, not a party to the action, and is at least 18 years old to serve your spouse. If you enlist a non-resident of New York to serve your spouse outside the state, the server must be a qualified attorney, solicitor, or equivalent in that state or nation. Otherwise, the individual must be authorized to serve documents under the state's laws. The person who serves the papers must complete a notarized affidavit of service to establish that the papers were indeed served.
- Wait for your Spouse's Response: If your spouse is served within New York State, a response is required within 20 days. If the spouse is served outside the state, a response must be made within 30 days. However, if your spouse files a response disagreeing with anything in your divorce papers, the divorce will no longer be considered uncontested.
- Get Your Case Scheduled on the Court Calendar: If your spouse consents to the divorce or defaults by failing to answer, the next step is to have your case scheduled in court. To get your divorce case scheduled, you must complete the remaining applicable forms as contained in the Introduction to Uncontested Divorce Instructions Packet. After completing the required paperwork, you may submit them to the clerk. The judge will issue a divorce judgment if the court approves the forms.
If your spouse objects to anything in your divorce papers, the divorce becomes a contested divorce. In these instances, the court will decide the matters on which you and your spouse disagree.
New York Alimony
Spousal maintenance, sometimes called alimony, is money that an ex-spouse may be obligated to pay the other spouse after a divorce. New York alimony is not awarded in every divorce proceeding. A court will consider numerous factors when determining whether alimony is appropriate in any case, including a spouse's financial dependence on the other spouse and the other spouse's capacity to pay. A court will consider the duration of the marriage, each spouse's existing and future earning capacities, the receiving spouse's potential to become self-reliant, and each spouse's financial or homemaking contributions to the marriage when determining an alimony award.
Alimony statutes in New York are contained under Chapter 14 of Article 13 of the state's Domestic Relations Law. Alimony may be given in the form of a lump sum payment, as temporary assistance, or as extended monthly payments. To modify an alimony award, the party seeking modification must demonstrate that their circumstances have deteriorated such that the current order is no longer suitable. In most situations, a periodic alimony award will last the duration of the marriage.
New York Child Custody
New York child custody is a legal expression referring to a parent's legal authority to direct a child's upbringing. As a parent, even if you are not granted custody, you are likely to be entitled to visitation rights with the child. Both parents have a legal right to seek custody and visitation in a divorce.
Custody is divided into two components: legal and physical. Legal custody touches on the right to make important choices concerning your kid. This includes where your child attends school, the kind of religious education received, and medical decisions regarding the child. Physical custody refers to the person with whom the child lives daily. A parent having primary physical custody is sometimes referred to as the "custodial parent" or the "primary caretaker" of the child.
Section 70 of the New York Domestic Relations Law establishes custody determinations in the state. In determining visitation and custody, a New York judge considers whether there has been domestic violence and what is in the child's best interest. Factors that will be considered include:
- Who the primary caregiver of the child has been
- The quality of the home environment of each parent
- The judge's assessment of each parent's "fitness" (stable home and lifestyle, sound judgment, employment, and good mental and physical health)
- Which parent the child presently lives with and for how long
- Each parent's ability to provide psychological and intellectual support for the child
- Which parent allows the other parent in the child's life
- If the child is old enough, which parent the child prefers to live with
- Whether the child will be separated from any siblings
- Whether either parent is abusive
New York Child Support
According to New York Child Support Policies, a child is entitled to a part of the total income of both parents. Child support refers to the money paid by the non-custodial parent to the custodial parent if the child is below 21. Child support is calculated using a precise formula in accordance with the Child Support Standards Chart. Child support may be ordered by the New York Supreme Court during a divorce proceeding or in Family Court during a child support hearing.
In calculating child support, the court first determines each divorcing parent's net income. Net income is gross income minus specific deductions, such as FICA (Federal Insurance Contributions Act), spousal support, Yonkers income tax, NYC income tax, and child support paid for another child. Secondly, the court sums the parents' net income and multiplies it by a percentage determined by the number of children they have:
- 1 Child - 17%
- 2 Children - 25%
- 3 Children - 29%
- 4 Children - 31%
- 5 or more Children - 35%
This sum is then split by each divorcing parent's net income ratio to the combined net income of both parents. In addition to providing basic child support, a spouse may be obliged to pay for childcare expenses, schooling, and medical expenses. You may also calculate child support by familiarizing yourself with the New York State Bar Association's (NYSBA) Determining the Amount brochure.
New York Divorce Forms
- Statewide forms for attorneys and self-represented litigants
- Statewide forms required by court rules
- Optional attorney and self-represented forms
- General divorce samples (Part Forms) for judges
- Uncontested divorce forms