Splitting from your spouse is never easy. Whether you were married for decades or a just a few years, divorce can be a challenging process. However, many couples are able to manage a divorce on their own with a little knowledge of New York's rules and procedures governing divorce.
This article discusses the laws and rules for getting a divorce in New York. The same laws that apply to traditional marriages, also apply to same-sex married couples in New York. If you have questions after reading this article, contact a local family law attorney for advice.
New York divorce laws recognize fault and no-fault grounds for divorce. You can seek a no-fault divorce in New York if you and your spouse have been separated for at least one year or if there's been an "irretrievable breakdown of the marriage" for at least six months. Couples can also seek a divorce after entering into a separation agreement and living apart for at least one year.
Alternatively, you or your spouse can seek a divorce based on fault-grounds. In a fault-based divorce, one spouse must prove the other spouse is to blame for the marriage's breakdown. New York recognizes the following fault-based grounds:
Fault-based divorces are usually lengthier and more costly than a no-fault divorce since you'll need to prove fault at trial. However, in some situations proving the other spouse's fault my benefit the innocent spouse in a property award or when a judge decides custody. See NY Dom. Rel. L. § 170 (2020).
To get a divorce in New York, one of the following scenarios must apply:
Once your case is filed in New York, there's no formal waiting period before a judge can enter a decree of divorce (final order) in your case.
Same-sex couples who married legally in another marriage-equality state can get divorced in New York as long as they meet the residency requirements.
Marital property is divided equitably in New York. This means that property and debts acquired during the marriage are divided fairly between the spouses – this won't always result in an equal split. Instead, a judge may award a larger portion of assets to the lower-earning spouse, and additional debts to a spouse with a high-paying career.
Typically, only marital property is divided in a divorce. Marital property includes your home, income earned during the marriage, and personal possessions. The court will consider each spouse's future earning potential, 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 when dividing property.
While spouses are generally entitled to keep their own separate property (property owned before marriage or received by gift or inheritance during the marriage) if the court believes that justice demands it, the court can divide one spouse's separate property between both spouses. Read our article New York Divorce: Dividing Property for more detailed information.
Alimony isn't awarded in every New York divorce. A judge will review several factors to determine if alimony is appropriate in your case, including a spouse's need for financial support and the other spouse's ability to pay. As part of any alimony award, a judge will evaluate 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.
Alimony can be awarded in a lump sum, as temporary support, or periodic, monthly payments. To modify an alimony award, the person requesting the modification must show that circumstances have changed so substantially that the current order is no longer appropriate. In most cases, a periodic alimony award will continue for the length of the marriage.
In making a child custody or visitation order, New York courts are guided by the best interests of the child. Parents are free to make their own custody agreements as long as the agreement serves the child's best interests. However, when parents can't agree, a court may award custody to one or both parents, with the goal being to provide the child with the most stable environment possible.
To determine a child's best interests, a New York judge may consider the following factors:
Parents who agree on a custody arrangement may submit their proposed plan to the court and it will become an order of the court so long as it meets the child's needs. If your case goes to trial, a judge will decide physical custody and legal custody. "Physical custody" refers to where a child lives. "Legal custody" involves a parent's decision-making rights over a child.
New York has enacted statutory guidelines for calculating child support. A child support award in New York is based largely upon the combined income of both parents. In most cases, the noncustodial parent (parent without primary physical custody) will pay child support to the custodial parent (parent who primarily lives with the child).
When calculating support, the court will also consider each parent's financial resources, the child's health or special needs, and the standard of living to which the child is accustomed.
The court may also order one parent to pay for the child's health insurance, medical expenses, or educational expenses. Under New York law, child support obligations continue until the child turns 21. If you need help enforcing a child support order, contact the New York Division of Child Support Enforcement.
In cases where one parent has quit a high-paying job or is claiming lower earnings to decrease his or her child support award, a judge can impute income to the deadbeat parent.
This means a judge can assign an income amount to a parent based on the parent's historical earnings. Both parents have a financial duty to support their children and neither parent can shirk a child support obligation.