Divorce & Family Law Summary
U.S. Divorce Laws are enacted by each state using their respective legislative process. Once legislation is enacted into law, the divorce courts in New York have the authority to manage the divorce proceedings, including spousal support and child support payments, custodial rights of parents, and the division of property.
Since state laws are repealed and amended frequently, it is always advisable to consult with an experienced divorce lawyer before making important decisions about your marriage.
All states allow for “no-fault” divorce. Yet many courts still factor in the respective parties’ past behavior when determining the division of community property, debts, custody, support, and related issues.
Read our expanded article on the divorce process for a deeper and more realistic understanding of the challenges you’re likely to face.
GROUNDS FOR DIVORCE
In 2010, New York became one of the last states to enact no-fault divorce laws.
The statutory grounds for divorce in New York:
- Cruel and inhumane treatment of one spouse, such as domestic violence by the other that endangers the physical or mental wellbeing of the spouse;
- Abandonment for a period of one or more years;
- Imprisonment of one spouse for a period of three or more years which ran consecutively;
- Adultery;
- The spouses have lived apart according to a decree or judgment of separation for a period of one or more years after the decree or judgment was granted;
- The spouses have lived apart according to a written spousal agreement of separation or for a period of one or more years said the deal was executed and a submission of proof by the party petitioning for divorce that all terms and conditions of such agreement were satisfactorily completed; or
- The relationship between the spouses has broken down irretrievably for at least six months.
Grounds For Separation
- Cruel and inhumane treatment of one spouse by the other that endangers the physical or mental well-being of the spouse;
- Abandonment
- The neglect or refusal to provide for the support of the other spouse where that spouse is chargeable with such support
- Adultery; or
- Imprisonment of one spouse in prison for a period of three or more years that ran consecutively
NOTE: A legal separation is revocable upon the joint application of both spouses, accompanied by satisfactory evidence of their reconciliation.
RESIDENCY REQUIREMENTS
To file for divorce, separation, or annulment, the following residency requirements must be met:
- If the couple was married in the state and at least one spouse has been a resident of the state for a continuous period of one year before filing;
- The couple has resided in the state as husband and wife, and either party has lived in the state for a continuous period of one year before filing;
- The grounds for divorce occurred in New York, and either spouse has been a resident of the state for at least one year before filing;
- Either party has been a resident of the state for a continuous period of at least two years immediately preceding the commencement of the action.
STATUTORY PROPERTY DIVISION
New York is an equitable distribution state, meaning that marital assets will be divided in an equitable but not necessarily equal fashion unless the parties have entered a legally valid prenuptial or antenuptial agreement.
In determining an equitable disposition of property, the court may consider, but is not limited to, the following factors:
- The income and property of each party at the time of marriage and at the time of the commencement of the action;
- The duration of the marriage and the age and health of both parties;
- The need for a custodial parent to occupy or own the marital residence and to use or own its household effects;
- The loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution;
- Any award of maintenance;
- Any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having a title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner, and homemaker, and to the career or career potential of the other party;
- The liquid or non-liquid character of all marital property;
- The probable future financial circumstances of each party;
- The impossibility or difficulty of evaluating any component asset or any interest in a business, corporation, or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party;
- The tax consequences to each party;
- The wasteful dissipation of assets by either spouse;
- Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
- Any other factor which the court shall expressly find to be just and proper.
SPOUSAL SUPPORT
Either spouse may be awarded spousal support.
Spousal support is decided on a case-by-case basis. When determining whether to award spousal support, the court considers:
- The length of the marriage,
- The ability of each spouse to be self-supporting, and
- The circumstances of the case and the respective parties.
In determining the amount and duration of maintenance, the court may consider, but is not limited to, the following:
- The income and property of the respective parties, including marital property distributed in the divorce;
- The duration of the marriage and the age and health of both parties; (3) the present and future earning capacity of both parties;
- The ability of the party seeking maintenance to become self-supporting and, if applicable, the period and training necessary to become self-supporting;
- Reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage;
- The presence of children of the marriage in the respective homes of the parties;
- The tax consequences to each party;
- Contributions and services of the party seeking maintenance as a spouse, parent, wage earner, and homemaker and to the career or career potential of the other party;
- The wasteful dissipation of marital property by either spouse;
- Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; and
- Any other factor which the court shall expressly find to be just and proper.
SPOUSE’S LEGAL NAME
In any action dissolving a marriage, the final judgment shall contain a provision that each party may resume using their pre-marriage surname or another former surname.
CHILD CUSTODY
The court considers the following factors when making decisions regarding the Best Interests Of The Child
- The effect of separation of siblings;
- The wishes of the child,
- The length of time the present custody arrangement has been in effect;
- Abduction or abandonment of the chill or other defiance of legal process by either of the parents;
- The relative stability of each parent;
- The care and affection showed to the child by the parents;
- The ability and availability of the parents;
- The morality of the parents;
- A parent’s ability to personally devote time to the child;
- The prospective educational probabilities;
- The possible effect of a custodial change on the child;
- The existence of domestic violence against one of the parents or a family or household member;
- The financial condition of the parents; and
- The parents’ past bad or good conduct.
CHILD SUPPORT
New York uses the Income Shares Model in child support.
In determining the amount of child support, the court will use its best discretion and will consider, but is not limited to, the following factors:
- The physical and emotional health of the child and their particular needs and aptitudes;
- The standard of living the child would have enjoyed the marriage or household not been dissolved;
- The tax consequences to the parties;
- The non-monetary contributions that the parents will make toward the care and wellbeing of the child;
- The educational needs of either parent;
- A determination that the gross income of one parent is substantially less than the other parent’s gross income;
- The needs of the children of the non-custodial parent for whom the non-custodial parent is providing support, who are not subject to the instant action and whose support has not been deducted from income;
- Provided that the child is not on public assistance (i) extraordinary expenses incurred by the non-custodial parent in exercising visitation, or (ii) expenses incurred by the non-custodial parent in extended visitation provided that the custodial parent’s expenses are substantially reduced as a result thereof; and
- Any other factors the court determines are relevant in each case.
SAME-SEX DIVORCE
On June 26, 2015, the U.S. Supreme Court ruled that gay marriage is a right protected by the U.S. Constitution in all 50 states. It follows, therefore, that the rights and obligations between same-sex divorcing parties are subject to the same dissolution laws of that state. Reference: U.S. Supreme Court Opinion: Obergefell v. Hodges.
