New York Divorce Information

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RESIDENCY REQUIREMENTS AND WHERE TO FILE: If only one spouse resides in New York at the time of filing the divorce, the residency requirement is 2 years. However, the requirement is reduced to 1 year if: (1) the spouses were married in New York and either spouse is still a resident; or (2) they once resided in New York and either spouse is still a resident; or (3) the grounds for divorce arose in New York. In addition, there is no residency time limit requirement if both of the spouses were residents of New York at the time of filing the divorce and the grounds for divorce arose in New York. The divorce may be filed for in a county where either spouse resides. [Consolidated Laws of New York Annotated; Domestic Relations Law, Volume 8, Sections 230 and 231; and New York Civil Practice Laws and Rules, Rule 503].

LEGAL GROUNDS FOR DIVORCE: No-Fault: (1) living separate and apart for 1 year under the terms of a separation agreement which is in writing and signed and notarized. (Proof of compliance with the terms of the settlement agreement must be submitted when the divorce is filed. In addition, a copy of the agreement or a brief memorandum of the agreement must be filed in the office of the clerk of the county; or (2) living separate and apart for 1 year under the terms of a judicial separation decree. [Consolidated Laws of New York Annotated; Domestic Relations Law, Volume 8, Section 170]. General: (1) adultery; (2) abandonment for 1 year; (3) imprisonment for 3 or more consecutive years; and (4) cruel and inhuman treatment. [Consolidated Laws of New York Annotated; Domestic Relations Law, Volume 8, Section 170].

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LEGAL SEPARATION: The grounds for legal separation (separation from bed and board) in New York are: (1) adultery; (2) abandonment; (3) imprisonment for 3 or more consecutive years; (4) neglect of and failure to provide support for a wife; and (5) cruel and inhuman treatment. If only one spouse resides in New York at the time of filing the legal separation, the residency requirement is 2 years. However, the requirement is reduced to 1 year if: (1) the spouses were married in New York and either spouse is still a resident; or (2) they once resided in New York and either spouse is still a resident; or (3) the grounds for legal separation arose in New York. In addition, there is no residency time limit requirement if both of the spouses were residents of New York at the time of filing the legal separation and the grounds for legal separation arose in New York. [Consolidated Laws of New York Annotated; Domestic Relations Law, Volume 8, Sections 200, 230, and 231].

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SIMPLIFIED OR SPECIAL DIVORCE PROCEDURES: A summary divorce may be granted in New York if: (1) the spouses lived apart for 1 year according to the terms of a separation decree or a separation agreement; and (2) satisfactory proof is submitted to the court that the spouse seeking the divorce has substantially performed all the terms and conditions of the separation decree or separation agreement. There are sample divorce forms contained in the statute (Forms 1 and 12 for no-fault grounds), including the language necessary to state specific grounds and residency requirements. In addition, New York requires a financial disclosure to be filed in every divorce action. [Consolidated Laws of New York Annotated; Domestic Relations Law, Volume 8, Sections 170 and 236].

MEDIATION OR COUNSELING REQUIREMENTS: There are no legal provisions in New York for divorce mediation.

PROPERTY DISTRIBUTION: New York is an "equitable distribution" state. Separate property, including property acquired before a marriage and any gifts or inheritances whenever acquired, is to remain with the spouse who owns it. Separate property also includes any increase in value or property acquired in exchange for separate property. Marital property acquired during the marriage will be equitably divided between the spouses, based on the following factors: (1) the contribution of each spouse to the acquisition of the marital property, including the contribution of each spouse as homemaker; (2) the value of each spouse's property at the time of the marriage and at the time of filing for divorce; (3) the probable future economic circumstances of each spouse; (4) the length of the marriage; (5) the age and health of the spouses; (6) the amount and sources of income of the spouses; (7) the present and potential earning capability of each spouse; (8) the potential loss of inheritance or pension rights upon dissolution of the marriage; (9) whether the property award is instead of or in addition to maintenance; (10) custodial provisions for the children and the need for a custodial parent to occupy the marital home; (11) the type of marital property in question (whether it is liquid or non-liquid); (12) the impossibility or difficulty of evaluating an interest in an asset such as a business, profession, or corporation and the desirability of keeping such an asset intact and free from interference by the other spouse; (13) the tax consequences to each party; (14) the wasteful dissipation of assets; (15) any transfer of property made in anticipation of divorce; (16) any equitable claim that a spouse has in marital property, including joint efforts and expenditures, and contribution and services as a spouse, parent, wage earner, and homemaker, and to the career and career potential of the other spouse; and (17) any other factor necessary to do equity and justice between the spouses. Marital fault may be considered. Financial disclosure of assets and income are mandatory. [Consolidated Laws of New York Annotated; Domestic Relations Law, Volume 8, Section 236, Part B].

ALIMONY/MAINTENANCE/SPOUSAL SUPPORT: Either spouse may be awarded maintenance, without regard to marital fault, based on a consideration of the following factors: (1) the income and property of the spouses, including any marital property divided as a result of the dissolution of marriage; (2) any transfer of property made in anticipation of divorce; (3) the duration of the marriage; (4) the wasteful dissipation of marital property; (5) the contribution of each spouse to the marriage and the career of the other spouse, including services rendered in homemaking, child care, education, and career building of the other spouse; (6) the tax consequences to each spouse; (7) any custodial and child support responsibilities; (8) the ability of the spouse seeking support to become self-supporting and the time and training necessary; (9) any reduced lifetime earning capacity as the result of having foregone or delayed education, training, employment, or career opportunities during the marriage; (10) whether the spouse from whom maintenance is sought has sufficient property and income to provide maintenance for the other spouse; and (11) any other factor the court deems just and equitable. [Consolidated Laws of New York Annotated; Domestic Relations Law, Volume 8, Section 236, Part B].

CHILD CUSTODY: Joint or sole child custody is to be determined according to the best interests of the child. Neither parent is entitled to a preference. There are no factors specified in the statute. [Consolidated Laws of New York Annotated; Domestic Relations Law, Volume 8, Section 240 and New York Case Law].

CHILD SUPPORT: Either or both parents may be ordered to pay child support necessary for the support, maintenance, and education of the child. Health insurance coverage may be ordered to be provided. Marital misconduct of either parent is not to be considered. There are specific child support guidelines which are presumed to be correct, unless there is a showing that the amount of support would be unjust or inappropriate. The factors to be considered in determining the inappropriateness or justness of an award of support are: (1) the financial resources of the child; (2) the standard of living the child would have enjoyed if the marriage had not been dissolved; (3) the physical and emotional health of the child and any special needs or aptitudes of the child; (4) the financial resources, needs, and obligations of both the noncustodial and the custodial parent; (5) the tax consequences to each parent; (6) the non-monetary contributions that the parents will make towards the care and well-being of the child; (7) the educational needs of either parent; (8) whether one parent's income is substantially less than the other parent's; (8) the needs of other children of the non-custodial parent; (9) if the child does not receive public aid: any extraordinary expenses required for the non-custodial parent to exercise visitation rights; and (10) any other relevant factors. Security may be required for the payments. [Consolidated Laws of New York Annotated; Domestic Relations Law, Volume 8, Sections 32, 33, 236-Part B, 240, and 243 and New York Case Law].

PREMARITAL AGREEMENT: New York does not have any statutes pertaining to premarital agreements.

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