State Of New York Divorce Laws

About This Article

This article covers the following New York Divorce topics:

• New York Residency Requirements
• New York Grounds For Divorce (No-Fault)
• Division of Property (Equitable Distribution) 
• New York Spousal Separation 
• New York Child Custody
• New York Child Support
• New York Spousal Support
• Mediation 
• Name Change

Introduction

New York State, and in particular New York City, is one of the most vital and dynamic places in the world.

With so much to do and see, one may ask, who has the time to get divorced?

In response to this question, let’s take a look at some of New York’s divorce statistics.

Divorce Statistics For New York

According to the CDC’s National Center for Health Statistics, in recent years, the New York divorce rate has been approximately 2.2 per 1,000 people.  This is slightly lower than the national average.

New York counties with the “highest” divorce rates include:

• Ulcer County at 11.7 per 1,000 residents
• Niagara County at  11.2 per 1,000 residents
• Onondaga County at 11.1 per 1,000 residents

New York counties with the “lowest” divorce rates include:

Kings County at 7.4 per 1,000 residents

Queens County – 7.6 per 1,000 residents

New York County – 8.4 per 1,000 residents

Residency Requirments

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 had 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

Grounds for Divorce

In New York, several grounds for divorce are legally recognized and enforceable. These grounds fall into two main categories: no-fault and fault-based divorce.

The spouses can choose to follow either divorce process.

No-Fault Divorce

In 2010, New York became one of the last states to enact no-fault divorce laws. Under these laws, a marriage may be dissolved if a spouse declares the relationship is irretrievably broken.

Fault-Based Grounds

The following are statutory grounds for fault-based divorce:

• Cruel and Inhuman Treatment: This means that one spouse’s physical or mental abuse makes it unsafe or improper for the other spouse to continue living with them. This could include physical violence, emotional abuse, or other forms of mistreatment.
• Abandonment: This occurs when one spouse leaves the other for at least one year. This can include physical abandonment (leaving the marital home) or constructive abandonment (refusing to engage in sexual relations for at least one year).
• Adultery: This ground is based on one spouse having sexual relations with someone other than their spouse during the marriage. It must be proven with clear and convincing evidence.
• Imprisonment: If one spouse is imprisoned for three or more consecutive years after the marriage, the other spouse can file for divorce on this ground.
• Living Separate and Apart Under a Separation Judgment or Decree: If the spouses have lived apart for at least one year following a judgment of separation issued by a court.
• Living Separate and Apart Under a Separation Agreement: If the spouses have lived apart for at least one year following a written separation agreement signed by both parties and filed with the court.

Contested and Uncontested Divorce

The divorce process in New York depends on whether the divorce is contested or uncontested.

Uncontested Divorce

In an uncontested divorce, the legal process is relatively straightforward, assuming both parties agree on all material terms, including:

• Property Division
• Child Custody
• Child Support
• Spousal Maintenance

Contested Divorce

The process is much more complex:

• Discovery Process: Both parties exchange financial information and other relevant documents.
• Pre-trial Conferences: The court may hold conferences to encourage settlement and manage the case.
• Trial: If no settlement is reached, the case goes to trial. Both parties present evidence and witnesses.
• Judgment: The judge issues a Judgment of Divorce, deciding all contested issues.

Legal Separation

In New York, legal separation is an alternative to divorce. It allows spouses to live apart while remaining legally married.

Methods of Legal Separation

Separation By Mutual Agreement:  Spouses can mutually agree to live apart by creating a written separation agreement that specifies their rights and obligations.

Best To Comply With Formal Process: While not required, it is often beneficial to file the separation agreement with the county clerk to provide a public record of the agreement. Make sure the agreement is signed by both parties and notarized. It is advisable to have the agreement drafted or reviewed by an attorney to ensure it is fair and legally binding.

Separation By Judicial Decree:

One spouse can file an action for a judgment of separation in the New York Supreme Court. The grounds for judicial separation include:

• Cruel and Inhumane Treatment 
• Abandonment
• Adultery
• Imprisonment
• Neglect of support

If the court finds sufficient grounds, it will issue a judgment of separation, which will outline the terms of the separation, including financial support, custody, and property division.

Converting The Separation Agreement Into A Divorce: If the spouses have lived apart for at least one year under a valid separation agreement, either party can file for a no-fault divorce based on the grounds of living separately and apart for one year

Separation Can Be Revoked: A legal separation is revocable upon the joint application of both spouses, accompanied by satisfactory evidence of their reconciliation

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, the court may consider factors such as:

• 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 loss of inheritance and pension rights
• 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 tax consequences to each party
• The wasteful dissipation of assets by either spouse
• Any other factor which the court shall expressly find to be just and proper.

Spousal Support

Approximately 20% of divorces result in an order for spousal maintenance (alimony). The duration and amount can vary significantly based on the length of the marriage and the financial situation of both parties.

Either spouse may be awarded spousal support.

Spousal support is decided on a case-by-case basis. When determining whether to award spousal support, courts may consider:

• The length of the marriage
• The ability of each spouse to be self-supporting
• The circumstances of the case and the respective parties

In determining the amount and duration, courts may consider factors such as:

• 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
• 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
• Any other factor which the court shall expressly find to be just and proper.

Legal Name Change

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. Obtaining a legal name change after the divorce is concluded is also available. 

Child Custody

Approximately 50% of divorces involve children under the age of 18, and in about 80% of these cases, the mother is granted primary physical custody.

In determining the best interests of the child, the courts may consider factors such as:

• 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 child or other defiance of legal process by either of the parents
• The relative stability of each parent
• The care and affection shown 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
• The parents’ past bad or good conduct.

Emotional Impact On Children: Studies show that children of divorced parents in New York are more likely to experience academic, emotional, and behavioral challenges compared to their peers from intact families

Watch New York Divorce Attorney Dennis R. Vetrano Discuss Child Support:

Child Support

In determining the amount of child support, the court will use its best discretion and may consider factors such as:

• The physical and emotional health of the child and their particular needs and aptitudes
• The standard of living the child would have enjoyed if the marriage had not been dissolved
• The tax consequences to the parties
• The non-monetary contributions that the parents will make toward the care and well-being 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
• Any other factors the court determines are relevant in each case

Mediation

Mediation is not mandatory in New York for all divorce cases. However, divorce mediation is strongly encouraged and may be required in certain circumstances, particularly when it comes to resolving issues related to child custody and visitation.

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.

While our divorce summary is a good starting point for understanding the divorce laws in your state, it should not be viewed as a substitute for consulting with an experienced divorce lawyer about your specific situation, facts, and goals.

References and Sources:

Cornell Legal Information Institute

New York State Unified Court System

New York State Bar Association

Divorce Attorney Dennis R. Vetrano

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