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Divorce Laws

Divorce Laws in New York

What is Divorce Laws in New York

On August 15, 2010, New York State made significant changes to its divorce laws as Governor Paterson signed a liberalized no-fault divorce statute into law. The law took effect on October 15, 2010, 60 days after signing. Since then, you can establish a cause for divorce in New York by proving that the union has irretrievably broken down for six months. One party may make this assertion and, whether the other party agrees or not, the court will dissolve the marriage. During court proceedings for a no-fault divorce, the court is merely required to address ancillary matters such as equitable division of property, medical insurance, and spousal maintenance as well as child custody, visitation, and support. Pursuant to New York Civil Practice Law and Rules (CPRLR) § 105, a divorce action is an example of a Matrimonial Action. The spouse who brings the case to court is referred to as the plaintiff, while the other spouse is the defendant.

Alternatively, as was typically done prior to 2010, New York divorce laws permit spouses to seek a divorce based on fault grounds. In such an instance, one spouse must prove that the other is at fault for the breakdown of the marriage. The proof will be required in a court trial during divorce proceedings. New York divorce laws are contained in Section 170 of the state's Domestic Relations Law.

Note that New York State still maintains a conversion divorce process through which parties may get a divorce if they have been separated for more than a year, and the party seeking the divorce has largely satisfied the requirements of the separation decree or the separation agreement. To get a judgment of separation in New York, a party must establish adultery, cruel and inhuman treatment, non-support, abandonment, or imprisonment, as defined under Section 200 of the Domestic Relations Law.

New York Divorce Requirements or Grounds for Divorce in New York

Four of the grounds on which a divorce may be obtained in New York are considered at-fault grounds. That is, the divorcing party bringing the case to the court must establish a valid fault on the other party's part. Valid at-fault grounds on which a divorce may be ordered in court are:

  • Cruel and Inhuman Treatment: An inhuman or cruel treatment may take the form of physical or psychological abuse. To qualify as a cause for divorce, the treatment must have such a detrimental impact on the divorce-seeking spouse's physical or mental health that it is no longer safe or appropriate for the parties to continue the marriage.

Several examples of treatments that New York courts deem to be cruel and inhuman for divorce purposes include physical assaults on a spouse; constant screaming, profanity, or other verbal abuse; gambling away household funds; being absent from the house for an extended period of time without explanation; going out with another man or woman; and falsely accusing the other spouse of adulterous relations with another man or woman.

  • Abandonment for one or more years: Abandonment occurs when your spouse willfully leaves you without your approval and justification. For this cause to hold, you must not have coerced or locked your spouse out of the house. Additionally, you must establish that your spouse did not leave for a legitimate cause, that your spouse departed with the plan never to return, and that your spouse did not make an attempt to return in good faith.
  • Imprisonment for three or more years: Divorce on the grounds of three or more years of incarceration requires the defendant to have been convicted and incarcerated for three years or more prior to the filing of the divorce petition, even if the conviction is subsequently overturned or reversed.
  • Adultery: You can have your marriage dissolved in court due to an adulterous act by your spouse. However, note that you cannot testify against your spouse, and you must have a witness prepared to convince the court that your spouse had sexual relations with another person. Adultery is often established by circumstantial evidence, which demonstrates that your spouse had the chance, interest, and purpose to engage in sexual relations with another person.

The other ("no-fault") grounds for divorce in New York are:

  • One year of living apart in accordance with the terms of a separation agreement
  • One year of living apart according to a court-issued separation decree
  • An irreversible breakdown of the marriage lasting at least six months, as acknowledged under oath by one spouse

Per Section 230 of the Domestic Relations Law, New York also requires the fulfillment of any of the following residency requirements before filing a divorce petition in court:

  • The marriage ceremony took place in New York State, and either spouse was a resident of the state at the time of bringing the action to court and had lived continuously in New York for one year immediately preceding the commencement of the action; or
  • The couple resided in New York State as husband and wife, and either one is a resident and has remained in the state for a continuous period of one year immediately preceding the commencement of the divorce action; or
  • The grounds for divorce occurred in New York State, and either party has resided in the state for a continuous period of a minimum of one year before the commencement of the action; or
  • The grounds for divorce happened in the state, and both parties are New York residents at the time of the commencement of the divorce action; or
  • If you and your spouse got married outside of New York, you never lived together as husband and wife in the state, and the grounds for divorce did not occur in the state, then, either you or your spouse must be a New York State resident and have lived continuously in the Empire state for a minimum of 2 years prior to bringing the case to court.

New York Marital Property Laws or Property Division Law in New York

New York favors equitable distribution in dividing properties between divorcing parties. Equitable distribution as outlined in Section 236 of the New York Domestic Relations Law is based on the idea that marriage, particularly one of long duration, is both an economic and a social relationship. There are two types of properties recognized in a divorce: marriage property and separate property. Except for inheritance, gifts from third parties, compensation for personal injuries, and property obtained after the commencement of a divorce action, marital property includes all property acquired during the marriage (regardless of how title is held).

In divorce, marital property and obligations are allocated between spouses based on flexible and equitable principles. The valuation of marital property may necessitate the assistance of a professional. The division of marital property and the award of support resulting from matrimonial negotiations or litigation may have intricate and critical tax repercussions for both divorcing parties, necessitating professional assistance.

When determining an equitable division of assets after a divorce, a judge will consider several factors such as:

  • The health and age of each spouse
  • The period over which the marriage lasted
  • The property and income each spouse brought into the marriage
  • Whether alimony will be granted
  • Financial needs of the custodial parent if children are involved
  • The potential future needs of each divorcing party after the divorce
  • If either divorcing party squanders marital assets during the marriage or conceals or encumbers assets knowing a divorce is imminent
  • The liquidity of the marital property
  • Pension, health insurance, and inheritance rights of both divorcing parties

New York Alimony Laws

Alimony refers to money that a divorced party is obligated to pay the other party after finalizing a divorce. For divorces finalized after January 25, 2016, in New York, the court follows specific guidelines in determining alimony awards. As of March 2022, for the purpose of calculation, the income of the divorced party paying the alimony is capped at $203,000. This figure is subject to adjustment for the cost of living. The formula used in New York in the calculation of alimony payments covers both the amount of the spousal support payment and the period over which such payments must continue.

New York courts have the power to vary from this formula if the facts in a case indicate that the formula creates an unjust or improper result or award. For instance, the value of an alimony award may be modified if the divorced party receiving the payment is unable to be self-supporting or there has been a significant change in circumstances, such as financial hardship due to the retirement of the divorced party paying the alimony. Note that alimony obligations last for longer periods for divorcing parties who were married for many years. Alimony statutes in New York are contained under Chapter 14 of Article 13 of the state's Domestic Relations Law.

Alimony vs. Spousal Support in New York

Alimony and spousal support both imply the same thing in New York. It refers to a payment made by one spouse to the other after divorce as a form of financial support. In more recent times, it is commonly known as maintenance. Alimony or spousal support typically falls under two categories: temporary maintenance and post-divorce maintenance. Temporary maintenance, also called pendente lite maintenance, is alimony or spousal support paid while the divorce has yet to be finalized. Post-divorce action is the maintenance paid after the divorce action has concluded.

The same formulas are used for calculating temporary maintenance and post-divorce maintenance. The payer's income is also capped at $203,000, subject to adjustments in accordance with the prevailing consumer price index. Spousal support awards must end no later than the issuance of a divorce judgment or the death of either spouse. However, in specific circumstances, the New York Supreme Court is authorized to terminate the award prior to the issuance of the divorce judgment.

Child Support Laws in New York

Under the New York Child Support Standards Act (CSSA) contained in Domestic Relations Law § 240 and Family Court Act § 413, a child is entitled to a part of the total income of both parents. Child support is the money paid by the non-custodial parent to the custodial parent if the child is under 21. The child support calculated is based on the total income of the parents. The formula used in calculating this amount considers the incomes of both parents even if they have joint custody. It applies equally to children born to married parents and those born to unmarried parents and children up to the age of 21 except in instances where they were emancipated earlier.

The amount to be paid by a non-custodial parent is calculated at a maximum cap of $163,000 combined parental income, but the court is granted discretion to apply a series of factors or percentages in determining support on income over that amount. Typically, percentages are:

  • 17% for 1 child
  • 25% for 2 children
  • 29% for 3 children
  • 31% for 4 children
  • 35% for 5 or more children

Along with the basic child support obligation, the non-custodial parent may be required to pay work-related child care costs. Work-related child care costs refer to expenses for the care of a child for whom child support is being determined which are due to the employment of either parent. Also, the healthcare expenses of a child shared between divorcing parents are split between the parents depending on their combined parental income. Additionally, the noncustodial parent may be ordered to pay the educational expenses for a child born to the divorcing parties.

If the amount of the basic child support commitment is unreasonable or improper, the non-custodial parent's pro-rata portion of the child support obligation may be decided by other considerations other than the percentages listed above. The parents may avoid using percentages in calculating child support by entering into an agreement specifying the amount of child support agreed to be reasonable. A child support agreement must comply with specific technical provisions of the Child Support Standards Act. For more information on child support calculations in New York, check the Child Support Standards Chart.

In determining child support, the court will consider factors such as:

  • Financial assets of the parties involved in the divorce
  • The couple's standard of living before the divorce
  • The mental health and the physical health of the child
  • Tax implications
  • Educational needs of the child and the divorcing parents
  • Other children of either divorcing party that may exist outside the marriage

Child Custody Laws in New York

Child custody laws in New York decide custody issues in the child's best interests. There are two fundamental issues in custody: which parent the child will live with (Physical or Residential Custody) and which parent will make health, education, religious, and general welfare decisions on behalf of the child (Legal Custody). The most prevalent kind of custody arrangement is Joint Legal Custody. This indicates that the child resides with one parent (Residential Custodian) and has visiting privileges with the other parent. Both parents, however, share responsibility for their child's education, religion, and general welfare.

Section 70 of the state's Domestic Relations Law defines New York's system for determining custody. When deciding visitation and custody rights, a court considers if domestic abuse or violence has occurred and other factors such as:

  • The impact the separation of siblings (if any) may have on the child
  • Which of the divorcing parties the child prefers to reside with
  • The duration of the current custody agreement
  • The abandonment or abduction of the child or any defiance of legal actions by either parent
  • Each parent's relative stability
  • The parental care and affection offered to the child by the divorcing parties
  • The environment and conditions in the homes of the divorcing parties
  • The ability and availability of each of the divorcing parties in parenting the child
  • The morality of both parents
  • The capacity of a parent to personally dedicate attention to the child and the child's needs
  • Prospective educational probabilities
  • The child's potential reaction to a change of custody
  • The previous behaviors of both divorcing parties or parents

Annulment in New York

New York marriage annulment statutes are contained in Section 140 of the Domestic Relations Law. A marriage is annulled when it is voidable or void from the start; that is, there existed a flaw at the moment the parties entered into the marriage that allows the court to invalidate the union. The following are grounds for annulment:

  • Fraud: A marriage may be annulled if consent for marriage was obtained via deceit, provided that the fraud would have fooled an ordinarily cautious person and was material to obtaining the consent of the other party. Only the aggrieved spouse, the spouse's parent or relative, or anyone else with a strong desire to abandon the marriage, may get an annulment on this basis. Misrepresenting one's religious denomination or the intensity with which one practices; concealing one's inability to procreate, secretly carrying a genetic disorder or disease that would increase the risk of procreation; coercing one's husband into entering marriage on a false declaration of paternity; misrepresenting sexual proclivities, and physically being unable of consummating the marriage are all examples of fraud claims.
  • Non-age: In New York State, both parties in a marriage must be 18 years of age or older for a marriage to be valid. However, the state also permits marriage in an instance where one of the parties is between the ages of 16 and 18 but has parental permission to marry. The state also permits marriage between parties who are under the age of 16 and have both parental consent and judicial approval for the union. However, under no circumstance may persons under the age of 14 marry. A marriage between individuals under the age of 18 may be annulled at the court's discretion if the spouse under the age of 18 desires an annulment, or an action may be brought not only by the underage spouse but also by the spouse's parent or guardian.
  • 5 years of incurable insanity: If either partner becomes incurably insane for 5 years or more during the marriage, the marriage may be annulled. However, the sane spouse may be obliged to support the insane spouse for the rest of their life.
  • Mental Illness or Retardation: A marriage may be annulled if one or both parties suffered from mental illness or retardation when the parties married. If the party filing for the divorce continues in the marriage after their incapacity is remedied, this ground will be waived.
  • Duress: New York requires both parties intending to marry to consent to marriage willfully. A marriage may be annulled if one spouse consents to marry under coercion or duress from the other spouse or if either spouse does not comprehend the commitment they are about to make. This is sometimes referred to as a lack of consent. However, subsequent cohabitation or proof of forgiveness on the side of the coerced spouse may render the spouse's capacity to file for annulment under this basis ineffective.
  • Already married: If a spouse remarries before a prior marriage has been officially dissolved or annulled, the new marriage is invalid and may be annulled.

Legal Separation in New York

A married couple in New York may seek legal separation if they no longer want to live together. Instead of filing for divorce, the couple may choose to file for legal separation. Unlike divorce, the parties in a legal separation remain legally married and are not entitled to remarry. There are two methods to getting a legal separation in New York.

One separation method requires that a spouse file an action for separation in the court. This procedure entails going to court and obtaining a separation on the same grounds as a divorce. Also, the parties filing for legal separation resolve issues in the marriage in the same manner as they would in a divorce. Ultimately, the parties in the marriage will obtain a court-ordered Judgment of Separation. The second method of obtaining a legal separation in New York requires both parties in the marriage to enter into a separation agreement. Both methods require the parties in a marriage to separate for one or more years.

Note that without a formal written separation agreement or a judgment of separation, living apart is not deemed a ground for divorce in New York, regardless of how long you continue to live apart.

A separation agreement is a comprehensive document, typically created by attorneys, in which a couple agrees to live apart for the remainder of their lives. Usually, it spells the husband's and wife's respective rights and responsibilities for child custody and access, child support payments, property distribution, and all other aspects of the marital relationship. On the other hand, the judgment of separation is predicated on the same four "fault" grounds used to get a divorce. However, the period of abandonment may be less than a year. Additionally, "non-support" is a ground for a judgment of separation but not for a divorce decree. One year after the court's judgment of separation is entered, any party may seek a "no-fault" divorce based on a year of living apart. Still, after a year, divorce does not occur automatically; a court action is required before the marriage can be legally dissolved.



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