New York Divorce Requirements
Divorces are filed to the county district courts where individual live. If individuals live outside of New York they cannot file for a divorce in New York unless one of the individuals is a New York resident. New York laws states that to be considered a state resident an individual must reside in the state for a minimum of one year.
Other stipulations include being married in the state of New York, having at least one spouse be a current New York resident, the causing of the divorce began in the state with at least one individual being a state resident, both individuals being state residents, and either individual being a continuous state resident for a minimum of two years prior to divorce filing.
Under New York law, either individual may file for divorce in his or her county if the spouses live in different New York counties. In this case the petition may be filed in his or her county of residency or his or her spouse’s county of residency.
New York Grounds for Divorce
New York law states that when a divorce is petitioned the individuals must state the reasons for wanting a divorce. These reasons are called the grounds for divorce. Divorcing grounds are different in each state, so grounds for divorce may be legal in one state but may not be legal in the state of New York.
When petitioning for a divorce the individuals may decide upon which divorce grounds they are filing. One individual may petition for divorce and state the divorce grounds but will have to prove these grounds with evidence before the court.
New York has six different grounds on which a divorce can be petitioned.
- The first is that of inhuman and cruel treatment of one individual to the other. This can include physical endangerment or mental harassment while cohabitating.
- The second set of grounds includes the abandonment of one individual by the other for a minimum of one year. The third section of grounds is based on conviction to a jailing facility for three or more years where no cohabitation is possible.
- The fourth set of grounds includes the committing of adultery by one individual. Under this section adultery is defined as voluntary sexual conduct with another individual other than a man or woman’s spouse. Sexual conduct stipulations are outlines in New York articles ten and eleven.
- The fifth set of grounds includes the individuals involved living in separate homes for a minimum of one year prior to divorce petitioning with a decree of separation. Proof of separation will need to be provided.
- The sixth and final section of divorce grounds includes separation due to written agreement for a minimum of one year. This kind of agreement must be filed with the county clerk’s office and will need to state the addresses of the individuals and the date of filing.
Equitable Distribution / High Net Worth Divorce / QDROs
Property in New York is distributed fairly and not necessarily equally based on equitable distribution. If the individuals cannot reach settlement agreements, the court will distribute the property accordingly after considering each individual’s circumstances.
Property distribution, or “equitable distribution“, as it is known in New York state, is an important aspect of many divorce cases. Because equitable does not always imply equal, many factors must be considered when determining which assets are subject to distribution and how that distribution will take place. The definition of “assets” is quite broad and includes retirement accounts, pensions, and 401(k) accounts, as well as real estate, businesses, and a category unique to New York State known as “enhanced earning capacity,” which includes licenses and other credentials.
Child Support on New York
The non-primary residential parent is required by law in New York State to pay child support to the residential parent. The amount to be paid is governed by the Child Support Standards Act. Payments for one child are generally 17 percent, 25 percent for two, 29 percent for three, 31 percent for four, and 35 percent for five or more children. Payments are based on the individual’s gross income, less FICA and Medicare, and less payments made on behalf of other children or spousal maintenance, which are based on a valid agreement or Court Order. Other factors, such as the “cap,” are taken into account when determining the amount of support.
Child support is payable until the child reaches the age of 21, or it can be terminated earlier depending on the child’s emancipation factors. Support can be extended beyond the age of 21 if both parties agree.
Child Custody & Visitation
When it comes to custody, it is critical to retain an attorney as soon as possible because the initial determination of a temporary custody arrangement is critical. Finally, all custody arrangements or decisions are made in the best interests of the child and with or without the court’s approval. Once legal proceedings have begun, the judge will appoint an attorney to represent your child.
In New York State there are a variety of options involving custody and decision-making:
- Joint custody means that both parents have a say in their child’s decisions, though one parent may spend more time with the child than the other.
- Sole custody is granted to one parent, with the other parent having specific, enforceable periods of residency but having limited decision-making power.
- Shared custody: A 50/50 residency arrangement; the possibility when parents agree on how to divide residency and decision-making; cooperation is required.
- Split custody involves more than one child; one child’s primary residence is with one parent while the other child’s primary residence is with the other parent; this is uncommon but does happen.
Grandparent Rights – Custody and Visitation
When it comes to custody and visitation with their grandchildren, grandparents in New York have limited rights under the law. There are critical issues that must be addressed before any litigation can begin.
Spousal Maintenance in NY
Spousal maintenance (alimony) is a rehabilitative payment made by one spouse to the other. The amount and duration of maintenance are determined by a variety of factors. Understanding these factors and how they affect your case is critical. Some of these factors include the length of the marriage, income disparities between the parties, any physical impairment of the party receiving maintenance, and other factors specified in the Domestic Relations Law.
The legislature amended the statute in 2010 to provide for a specific formula for temporary spousal maintenance while a divorce action is pending. It is critical to have an attorney who understands this statute and its implications for temporary spousal maintenance.
There are also significant tax implications associated with the payment and receipt of spousal maintenance.
A post-divorce modification allows you to ask the court to change custody, visitation, or support orders to reflect changes in your life. In most cases, whether or not a court will grant the modification is largely determined by the facts of each individual case as applied to the specific law at issue. Receiving experienced expert advice once these changes occur is critical, because requesting such a change, or failing to take appropriate action if such a change has occurred, can be quite harmful if done without first seeking appropriate expert advice.
Prenuptial & Postnuptial Agreements
A prenuptial agreement is a contract or agreement between a couple who are about to marry in which numerous issues are resolved prior to the wedding. They generally address issues such as potential future spousal maintenance, separate property, inheritances, and estate planning. They may, however, include issues other than future custody rights or child support. Even if you intend to marry but do not wish to enter into a prenuptial agreement, it is critical to consult with an expert experienced attorney about the ramifications of marriage on all of the issues mentioned above.
A post nuptial agreement is a contract or agreement made between a married couple who do not intend to separate or divorce. Although less common than prenuptial agreements, many married couples will enter into these types of agreements, particularly when inheritance or estate planning issues are involved.