Getting a divorce can feel overwhelming on so many levels. And each state is different, so the legalities of getting divorced in one state may differ from those of another state.
This article is for married couples who want to get divorced in New York state. Increasing your knowledge of the New York divorce process can help eliminate uncertainty and empower you as you work through your divorce case and start the next exciting chapter of your life.
1. Divorce grounds
In 2010, New York state began to recognize and allow citizens to get no-fault divorces. A spouse seeking a divorce can simply allege that the marriage is irretrievably broken; they need not prevent any further proof or argument.
In the eyes of the New York court, the irretrievable breakdown of a marriage is an acceptable grounds for divorce, even if the other spouse objects.
It’s important to note that married couples can also file for divorce in New York citing fault-based grounds. Grounds in a fault divorce may include one or more of the following:
- Adultery
- Misuse of marital funds
- Cruelty
- Abuse
- Neglect
- Abandonment
No-fault vs. fault-based grounds
A no-fault divorce is generally faster, cheaper, and less contentious than a fault divorce. However, if your spouse did something to cause the divorce – and you seek additional property, assets, or custodial rights of your child – a fault divorce may be the right path. Granted, it is likely to take more time and money upfront, but in the end, you might get more out of a fault judgment of divorce than a no-fault divorce.
2. Residency requirements
Under New York law, before you can file for divorce, you must meet one of the following residency requirements:
- You and your spouse were married in New York
- You lived as a married couple in the state, and at least one of you was a resident of New York for a minimum of one year prior to filing
- If filing a fault divorce, the grounds for the divorce happened in New York
- Either spouse was a continuous resident of New York for at least two years prior to filing for divorce
New York imposes these requirements to prevent one spouse from trying to get a favorable divorce without having any ties to the state.
Nearly every state has a residency requirement; New York’s is one of the longer ones. Most states only require you to be a resident for a few months before filing for divorce.
3. Division of property
Under New York law, marital property is divided via the concept of equitable distribution. This does not mean property and debts are split 50/50. It simply means that marital property must be divided in a fair manner.
Marital property vs. separate property
The distinction between marital and separate property is important in New York. “Marital property” refers to assets or debts acquired during the marriage. “Separate property” refers to assets or debts that were already owned by one spouse prior to the marriage or were received as a gift or inheritance during the marriage.
Several factors may be considered when dividing marital assets:
- The length of the marriage
- The separate property of each spouse
- Each spouse's economic circumstances upon divorce
- Each spouse’s contributions to the marriage
- The future earning capacity of each spouse
As a general rule, separate property remains with its original owner and is not subject to division in divorce. But there are exceptions to this rule. For example, if one spouse made substantial contributions toward improving a separate asset during the course of the marriage, they may be entitled to part of that asset.
Furthermore, an increase in the value of a separate asset may become part of the marital estate if the increase occurred due to the efforts of both spouses.
4. Alimony
Alimony, also called spousal support or spousal maintenance, is not a requirement in a New York divorce. Under the relevant law, a judge will consider the following when determining whether spousal support should be awarded:
- The amount of time the couple was married
- Each spouse’s earning capacity
- The needs of each spouse
- The standard of living during the marriage
- One spouse’s ability to provide alimony and the other spouse’s need to receive it
- Tax consequences
- Each spouse’s contribution to the marriage
If one spouse took time off from work to care for minor children or experienced a significant drop in income due to unforeseen circumstances like loss of employment or serious illness, they might need financial assistance to maintain a reasonable standard of living post-divorce.
Similarly, if one spouse was the primary breadwinner throughout the marriage and can financially provide for themselves after separation, they may not need ongoing financial support from their former partner.
An alimony example
To illustrate how alimony might be awarded in New York, consider the following hypothetical scenario:
Jane and Bob were married for 10 years and have two minor children together. During the course of the marriage, Jane took time off from her career as an accountant to care for the kids while Bob worked as a lawyer at a prestigious firm. The couple is currently engaging in divorce proceedings in New York.
Because Jane gave up something of value – her continued employment and career – to benefit the marriage, she may be entitled to alimony from Bob. The amount and duration of the award depend on several factors. Jane and Bob may be able to reach an agreement about this with or without legal counsel. However, if they cannot agree – and Jane still wishes to receive alimony – she can request an award from the judge. The judge will review their divorce case and make a decision.
5. Child custody
New York law provides for child custody determinations to be made in the best interests of the child. There are two general types of custody in New York: legal and physical.
A parent with legal custody has a right and responsibility to make important decisions regarding their child's upbringing, such as medical care, education, and religious upbringing. “Physical custody” refers to where the child actually lives and spends most of their time.
When determining child custody in New York, courts typically consider a number of factors:
- Each parent's relationship with the child
- Each parent’s ability to provide for the child
- Any history of domestic violence or substance abuse
Legal custody is usually jointly held. This means the parents share responsibility in making important decisions. Physical custody is often shared, though one parent is usually deemed the primary physical custodian. This gives the child some sense of permanency and allows for a single address.
New York courts are hesitant to give one parent sole physical custody of a child because it’s important for kids to have both parents in their life. However, if one parent has a history of domestic violence, neglect, or any other detrimental behavior toward the child, the court may decide to award sole custody to the other parent.
6. Child support
Child support guidelines, governed under New York law, take the following factors into account:
- The financial resources of each parent
- The child’s standard of living during the marriage
- The physical and emotional health of each parent
- The child’s preference, if they are of sufficient age and mental capacity
- Any other relevant factors
Child support is not automatically awarded in New York. If awarded, it’s specifically designed for the benefit of the child and is not considered additional alimony.
If you’re getting divorced in the state of New York and have questions or concerns, Hello Divorce can help. We offer customizable and affordable flat-rate online divorce plans so you can avoid the need for a pricey family law firm and expensive divorce attorney.
Whether you just want help with your divorce forms or seek legal advice, we are here for you. In addition to our online plans, we offer a la carte services including professional divorce mediation (a cost-effective alternative to battling it out in court) and one-on-one Zoom meetings with a divorce attorney where you can get legal advice.
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