Divorce in New York

Requirements: One of the following residency requirements must be met:

• The marriage ceremony was performed in New York state and at least one of the spouses was a resident of the state at that time as well as one continuous year before the divorce proceedings.

• The parties lived as a married couple in the state and at least one of the spouses was a resident of the state for one continuous year before the divorce proceedings.

• The grounds for divorce occurred in the state and at least one of the spouses lived in the state for one continuous year before the divorce proceedings.

• The grounds for divorce occurred in the state and both spouses are residents at the time of the divorce proceedings.

• If the marriage ceremony did not occur in New York, the parties never lived as a married couple in the state and the grounds for divorce did not occur in the state, at least one of the spouses must be a resident of the state for two continuous years before the divorce proceedings.

Grounds: One of the following grounds for divorce must be met and certain elements must be provable:

• The cruel and inhuman treatment

• Abandonment for at least one year

• Confinement in prison for at least three consecutive year after the marriage

• Adultery proved with direct or circumstantial evidence. Four affirmative defenses exist. Pleaded and proved affirmative defenses result in the dismissal of the divorce action. The four defenses are as follows:

  • Adultery has been encouraged or consent has been given

  • Sexual relations are resumed after the discovery of adultery, resulting in forgiveness

  • Statute of limitations has expired. Divorce grounded on adultery must be acted on within five years of the discovery

  • Plaintiff is also guilty of adultery

• Husband and wife have lived separate and apart for at least one year. A Separation Agreement must be executed and filed with the county clerk to officially initiate the one year period.

Waiting Period: Unlike many states, New York does not have a minimum waiting period after filing before the divorce can be granted. However, mutual consent divorces have a one-year waiting period after filing the Separation Agreement.

Fees: You must purchase an index number for $170 to identify your case in the court system. The filing fee for the Request of Judicial Intervention is $75.

Property Division: New York is an Equitable Distribution. Marital assets and debts are divided in an equitable fashion. This means that based on the particulars of the case, distribution will be determined in a manner that fairly represents contributions to the marriage.

Marital Debts: See above

Maintenance is awarded in order to help a spouse to achieve independence. Payments are awarded for a definite or indefinite amount of time. The amount and duration is determined by the following considerations:

• The income and property of each party including distributed marital property

• The length of the marriage as well as the age and health of both spouses

• The current and future earning abilities of each spouse

• The ability of the spouse seeking maintenance to become self-sufficient and any time or training that may include

• Reduced lifelong earning capacity as a result of having foregone career opportunities or education during the marriage

• The presence of children of the marriage in the homes of each party

• Tax consequences to each spouse

• Contributions as a spouse, parent, wage-earner and homemaker of the spouse seeking maintenance and to the career or career potential of the other spouse

• The wastefulness of marital property by either spouse

• If a spouse has tried to hide assets in anticipation of divorce

• Any other factors that the court deems relevant

Custody: The court tries to determine what is best for the child. In deciding who should have primary custody the court will consider the following factors:

• Availability of parents to the child

• The physical and emotional health of each parent

• Evidence of child abuse or neglect

• Environments of each parents home

• Willingness of a parent to encourage the childs relationship with the other parent

• Preferences of a mature child

• Who has been the childs primary caretaker

• Any agreement between the parents

Child Support: In New York, child support is based on the combined income of the parents and how many children the parent is supporting. The schedule is as follows: