DIVORCE LAW FORUM

    

NEW YORK DIVORCE LAW

Here you will find New York specific divorce information, grounds, divorce law statutes, articles on Divorce law, state laws, child custody, child support, spousal support, visitation, legal separation, dissolution and links to free divorce forms, divorce records, divorce papers, divorce lawyers, divorce attorneys and support calculators.

RESIDENCY REQUIREMENTS:
In New York, one these residency requirements must be met in order to get an annulment, divorce, or legal separation:

1) If the marriage took place in New York State and at least one of the spouses has been a resident of the state for at least a period of one year prior to filing.

2) If couple has resided in New York State while married, and either husband or wife has resided in the State for at lease one year prior to filing.

3) Either party has been a resident of the state for a period of at least two years immediately prior the filing of the action.

[See New York Domestic Relations Laws - Article 13 - Sections: 230]

LEGAL GROUNDS FOR DIVORCE:
In New York a couple may divorce based on any of the following grounds:

1) Cruel and inhuman treatment of the other spouse.
2) One spouse abandoned the other by for a period of at lease one year.
3) The defendant has been imprisoned for a period of three or more consecutive years after the marriage.
4) Adultery
5) The spouses have lived separate and apart pursuant to a separation decree for at least one year.

[See New York Domestic Relations Laws - Article 10 - Section: 170]

Filing Spouse:

Plaintiff. The Plaintiff is the spouse who initially files for divorce in the family law or domestic relations court.

Non-Filing Spouse:

Defendant. The Defendant is non-filing spouse who receives the paperwork by service.

LEGAL SEPARATION:
Courts may enter a judgment legally separating the parties from bed and board, forever, or for a limited time, for any of the following situations:

1) Cruel and inhuman treatment of the other spouse.
2) One spouse abandoned the other by for a period of at lease one year.
3) One spouse fails to support the other spouse.
4) Adultery
5) One spouse is imprisoned for a period of at least three years after the marriage.

[See New York Domestic Relations Laws - Article 11 - Section: 200]

ALIMONY/SPOUSAL SUPPORT:
Spousal Support can be awarded to either party in an action for Divorce or Dissolution. In determining the amount and period of time for maintenance a court shall consider:

1) The income and property of the respective parties including marital property distributed in the divorce.
2) The duration of the marriage and the age and health of both parties.
3) The present and future earning capacity of both parties.
4) The ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary to become self-supporting.
5) 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.
6) The presence of children of the marriage in the respective homes of the parties.
7) The tax consequences to each party.
8) 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.
9) The wasteful dissipation of marital property by either spouse.
10) Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration.
11) Any other factor which the court shall expressly find to be just and proper.

[See New York Domestic Relations Laws - Article 13 - Section: 236]

PROPERTY DISTRIBUTION:
Property is divided via the concept of equitable distribution. This means that anything considered a marital asset will be divided in an equitable, however not automatically equal manner, unless the parties have entered a prenuptial or ante nuptial agreement. When employing the concept of equitable disposition of property, a court will consider the following factors:

1) The income and property of each party at the time of marriage, and at the time of the commencement of the action;
2) The duration of the marriage and the age and health of both parties;
3) The need of a custodial parent to occupy or own the marital residence and to use or own its household effects;
4) The loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution;
5) Any award of maintenance under subdivision six of this part;
6) Any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having 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;
7) The liquid or non-liquid character of all marital property;
8) The probable future financial circumstances of each party;
9) 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;
10) The tax consequences to each party;
11) The wasteful dissipation of assets by either spouse;
12) Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
13) Any other factor which the court shall expressly find to be just and proper.

[See New York Domestic Relations Laws - Article 13 - Section: 236]

SPOUSE'S NAME:
In any filing to terminate a marriage, the final decree of divorce shall contain a order that each party may resume the use of his or her pre-marriage surname or any other former surname.

[See New York Domestic Relations Laws - Article 13 - Section: 240-a]

CHILD SUPPORT:
The Income Shares Model is used in New York to determination of child support. Child support may be ordered for the care, maintenance and education of any unemancipated child under the age of twenty-one years. In New York "Child support percentage" shall mean:

 Seventeen percent of the combined parental income for one child.
 Twenty-five percent of the combined parental income for two children.
 Twenty-nine percent of the combined parental income for three children.
 Thirty-one percent of the combined parental income for four children.
 No less than thirty-five percent of the combined parental income for five or more children.

"Combined parental income" shall mean the sum of the income of
both parents.

The court shall calculate the basic child support obligation and the non-custodial parent's pro rata share of the basic child support obligation. Unless the court finds that the non-custodial parents’ pro-rata share of the basic child support obligation is unjust or inappropriate, which finding shall be based upon consideration of the following factors:

 The financial resources of the custodial and non-custodial parent, and those of the child.
 The physical and emotional health of the child and his/her special needs and aptitudes.
 The standard of living the child would have enjoyed had 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 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.

[See New York Domestic Relations Laws - Article 13 - Section: 240]

PREMARITAL AGREEMENTS:

An agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded. Notwithstanding any other provision of law, an acknowledgment of an agreement made before marriage may be executed before any person authorized to solemnize a marriage. Such an agreement may include:

 A contract to make a testamentary provision of any kind, or a waiver of any right to elect against the provisions of a will.
 Provision for the ownership, division or distribution of separate and marital property.
 Provision for the amount and duration of maintenance or other terms and conditions of the marriage relationship, (subject to the provisions general obligations law), and provided that such terms were fair and reasonable at the time of the making of the agreement and are not unconscionable at the time of entry of final judgment.
 Provision for the custody, care, education and maintenance of any child of the parties, subject to the provisions of section two hundred forty of this article.

[See New York Domestic Relations Laws - Article 13 - Section: 236]

 

 

Disclaimer

This site is not meant to provide legal representation or to be relied on in place of an attorney. We recommend that anyone serious about going forward with a Divorce or Child Custody claim seek the advice and counsel of a qualified attorney in their respective state.

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