Divorce Law

Considering Divorce in New York? Here’s What You Need to Know.

Getting a divorce can be a very difficult experience—especially if you aren’t familiar with the laws. A simple divorce can be processed in as little as 60 days; however, a complex divorce (involving division of property, child custody, etc.) may take as long as one to three years.
If you are considering divorce in New York, there are many things you need to know, as the divorce laws in New York are different than in other states.
 
Residency Requirements for Divorce in New York 

In order to get a divorce in New York, at least one the following conditions must apply:
• If you and your spouse were married in New York, at least one of you must be a resident of New York at the time of filing, and must have been a resident of New York for at least one continuous year prior to the commencement of the divorce.
• If you and your spouse were not married in New York, but resided in New York as husband and wife, at least one of you must be a resident of New York at the time of filing, and must have been a resident of New York for at least one continuous year prior to the beginning of the divorce.
• The grounds for divorce occurred in New York and either you or your spouse has resided in New York for at least one continuous year prior to the beginning of the divorce.
• The grounds for divorce occurred in New York and both you and your spouse have resided in New York for at least one continuous year prior to the commencement of the divorce.
• Either you or your spouse has been a resident of New York for at least two continuous years prior to the commencement of the divorce.

Divorce in New York

 
Grounds for Divorce in New York

New York recognizes six grounds for divorce:
• Adultery
• Cruel and inhuman treatment
• Imprisonment of spouse for at least three years
• Spousal abandonment for at least one year
• Separation agreement signed by both parties after which parties live separately for at least one year
• Separation agreement granted by the court after which parties live separately for at least one year
 
Equitable Distribution of Marital Property (Distribution of Assets) 

New York divorce law states that all property which was acquired during the marriage shall be divided equitably between the two parties, except where the parties have entered a prenuptial or antenuptial agreement. It is important to note that equitable distribution does not mean equal distribution. This means that each spouse will not end up with an equal share, but rather what the judge deems to be equitable, or fair.
There are a number of factors that influence the judge’s decision, including:
• Income of each spouse at the beginning and end of marriage
• Property of each spouse at the beginning and end of marriage
• Importance of custodial parent to keep primary residence and household effects
• Duration of marriage
• Age of spouses
• Health of spouses
• Loss of pension
• Loss of inheritance
• Awards of maintenance
• The wasteful dissipation of assets or marital property
• Tax consequences to each spouse
 
Spousal Support in New York 

Alimony decisions will depend heavily upon the income histories of both parties before and during the marriage, as well as their earning capacities and ability to maintain a reasonable standard of living after the marriage. For example, the earning capacity of a stay-at-home parent will be drastically different than that of a career-driven parent.
Factors which will be considered include:
• The income histories of both parties before and during the marriage
• Present and future earning capacities of each spouse
• The property distributed to each spouse
• Duration of marriage
• Age of spouses
• Health of spouses
• The ability of the spouse seeking support to become self-sufficient and, if so, the length of time necessary to do so
• The ability of the other spouse to provide support and still maintain a reasonable standard of living
• Reduction of earning capacity of the spouse seeking support because of delayed education, training or employment due to their position as a homemaker during the marriage
• Contributions to the career and earning potential of the other spouse as a result of the spouse seeking maintenance acting as a parent or homemaker during the marriage
• The presence of children from the marriage living in the home of each spouse
• The wasteful dissipation of assets or marital property
• Tax consequences to each spouse
 
Child Support & Custody in New York 

Child custody and visitation rights will be determined by the judge. There are cases in which you may be required to pay child support, but are denied visitation rights. Child custody and visitation depend upon a number of circumstances, but are heavily influenced by the cause for divorce. If, for example, a spouse is accused of being abusive during the relationship, he or she may be denied contact with the children after the divorce.
Child support is separate from both child custody and alimony. In New York child support cases, the parents must provide support until the child reaches 21 years of age. The amount of child support is calculated as a percentage of both parents’ income. Based upon an average income, New York child support percentages are as follows:
• 17% – One child
• 25% – Two children
• 29% – Three children
• 31% – Four children
• 35% – Five or more children
Once child support percentages are determined, the court reviews each parent’s individual income in order to determine his or her financial obligations.
 
Homosexual Divorce in New York 

Along with the legalization of gay marriage in New York in June 2011 also came the legalization of homosexual divorce. Gay divorce in New York is very much the same as heterosexual divorce. The processes and legalities are the same and should be treated as such.