This article discusses the laws and rules related to getting a divorce in New York. The same laws apply to same-sex married couples there; same-sex couples who married legally in another marriage-equality state can also get divorced in New York if they meet the residency requirements.
Grounds for Divorce
You may file for divorce in New York if you and your spouse have lived apart for at least one year and you have a separation agreement. Alternatively, you may file on grounds of cruel and inhuman treatment, abandonment by your spouse for more than one year, adultery, or your spouse’s imprisonment for more than three years.
Residency Requirement and Waiting Period
To get a divorce in New York, one of the following must apply:
- you were married in New York and one spouse has lived in the state for at least one year
- you lived in New York as a married couple and either spouse has lived in the state for at least one year, or
- you or your spouse has lived in the state for at least two years.
There is no formal waiting period for a judge to enter a decree of divorce in New York.
Marital property is divided equitably in New York, meaning that property and debts acquired during the marriage are divided between the spouses based on what is fair--which doesn't necessarily mean the division must be equal. Property includes your home, income, and personal possessions. The court will consider each spouse's future financial circumstances, a custodial parent's need to stay in the family home, the tax consequences to each spouse of any given division, and the value of assets or business interests. If the court believes it's fair, it can also divide separate property--meaning, it can allocate property that one spouse brought into the marriage to the other spouse in divorce.
(See New York Divorce: Dividing Property for more detailed information).
New York courts may order one spouse to pay alimony. The judge will review several factors to determine the amount of the order, such as the length of the marriage, each spouse's current and future earning ability, the receiving spouse's ability to become self supporting, and each spouse's financial or homemaking contributions to the marriage. To modify a permanent alimony award, the person requesting the modification must show that circumstances have changed so substantially that the current order is no longer appropriate.
New York courts calculate child support based on the combined income of both parents. Child support obligations continue until the child turns 21. When determining support, the court will also consider each parent's financial resources, the child's health or special needs, and the standard of living the child is used to. The court may also order one parent to pay for the child's health insurance, medical expenses, or educational expenses. If you need help enforcing a child support order, contact the New York Division of Child Support Enforcement.
(See New York Child Support FAQs to find out how child support is determined).
In making a child custody or visitation order, New York courts are guided by the best interests of the child. The court may award custody to one or both parents, with the goal being to provide the child with the most stable environment possible. The judge will consider the emotional bond between the child and parents, the child's age, mental and physical health, the parents' lifestyles, and each parent's ability to provide the child with food, shelter, clothing, and medical care. Of course, if the parents agree on a custody arrangement, they may submit their proposed plan to the court and it will likely become an order of the court. To modify custody, you must show that circumstances have changed and that it is in the child's best interest to change the agreement.
For more information on child custody in New York, see the following:
- Child Custody in New York: The Best Interests of the Child - Learn about the "best interests" standard and how it's applied in cases of child custody in New York.
- Child Custody and Visitation in New York - This article provides answers to frequently asked questions about custody and visitation in New York.