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The divorce laws in New York are unique for the people who wish to terminate their marriage.
We are providing the following divorce laws in New York as an easy reference guide to help you complete your paperwork for filing for divorce in New York.
Residency Requirements: When filing for divorce in New York, you or your spouse must meet the strict residency requirements. These requirements permit the court to have jurisdiction of your case, resulting in allowing you to use their judicial system. These requirements are only a concern for spouses who have recently relocated or plan to relocate in the near future. They are as follows:
Required residence of parties. An action to annul a marriage, or to declare the nullity of a void marriage, or for divorce or separation may be maintained only when:
A. The parties were married in the state and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or
B. The parties have resided in this state as husband and wife and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or
C. The cause occurred in the state and either party has been a resident thereof for a continuous period of at least one year immediately preceding the commencement of the action, or
D. The cause occurred in the state and both parties are residents thereof at the time of the commencement of the action, or
E. Either party has been a resident of the state for a continuous period of at least two years immediately preceding the commencement of the action. (Consolidated Laws of New York - Domestic Relations Laws - Article 13 - Sections: 230 and 231)
No-Fault Grounds: Most uncontested divorce cases are filed according to a "no-fault" ground. We are using the term "no-fault" in a generic fashion by labeling all grounds that do not actually declare a "fault" as "no-fault". In the state of New York the "no-fault" grounds are as follows:
(1) Irretrievable breakdown in relationship for at least six months. (new in October 2010)
(2) The husband and wife have lived apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment.
(3) The husband and wife have lived separate and apart pursuant to a written agreement of separation, subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded, for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such agreement. Such agreement shall be filed in the office of the clerk of the county wherein either party resides. (Consolidated Laws of New York - Domestic Relations Laws - Volume 8 - Sections: 170 and Article 10, Section 170, and Article 13, Section 230)
Filing Party Name: The Plaintiff. This is the spouse who is recognized as the initiator of the divorce and is the one who actually files the Complaint for Divorce with the county court.
Non-Filing Party Name: The Defendant. This spouse plays a lesser role in an uncontested divorce versus a contested divorce. He or she will be required to sign and/or respond in a timely fashion to the documents filed by his or her spouse.
Family Law or Domestic Relations Court: Supreme Court of the State of New York, __________ County. All divorce cases in the state of New York are facilitated through this court for that particular county.
Clerk's Name: All correspondence with a New York clerk of the court should formally address him or her as follows: Office of the Clerk of the County Court.
Property and Debt Division: New York is considered an "equitable distribution" state. If you and your spouse are unable to come to an agreement on how the marital property will be divided, the court shall use a three step process. First, it will determine what property is marital. Second, it will put a value on the marital property. Third, it will divide the marital property in an equitable fashion, which is not necessarily equal, but rather what is considered to be fair.
Disposition of property in certain matrimonial actions.
The court shall consider the following factors when distributing property upon divorce:
(A) the income and property of each party at the time of marriage, and at the time of the commencement of the action;
(B) the duration of the marriage and the age and health of both parties;
(C) the need of a custodial parent to occupy or own the marital residence and to use or own its household effects;
(D) the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution;
(E) any award of maintenance under subdivision six of this part;
(F) 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;
(G) the liquid or non-liquid character of all marital property;
(H) the probable future financial circumstances of each party;
(I) 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;
(J) the tax consequences to each party;
(K) the wasteful dissipation of assets by either spouse;
(L) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
(M) any other factor which the court shall expressly find to be just and proper. (Consolidated Laws of New York - Domestic Relations Laws - Article 13 - Sections: 236)
Spousal Support, Maintenance, or Alimony: Determining the amount of spousal support, if any, is not as objective as determining child support. Spousal support, whether permanent or temporary, is typically decided on a case-by-case basis, because it is very likely that unique circumstances and factors regarding the marriage and the property award will play a significant role in allowing the court to arrive at the appropriate amount.
In determining appropriate temporary or permanent maintenance which has been paid. In determining the amount and duration of maintenance the court shall consider:
(A) the income and property of the respective parties including marital property distributed pursuant to subdivision five of this part;
(B) the duration of the marriage and the age and health of both parties;
(C) the present and future earning capacity of both parties;
(D) the ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefor;
(E) 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;
(F) the presence of children of the marriage in the respective homes of the parties;
(G) the tax consequences to each party;
(H) 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;
(I) the wasteful dissipation of marital property by either spouse;
(J) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; and
(K) any other factor which the court shall expressly find to be just and proper. (Consolidated Laws of New York - Domestic Relations Laws - Article 13 - Sections: 236)
Custody and Visitation: Shared or joint child custody has become more and more popular with the New York courts. If you and your spouse request to have joint or shared "legal" custody, it will almost always be granted. As for joint or shared "physical" custody, the court will examine this a bit more closely to determine if it is a realistic choice that would result in an arrangement that is best for the children.
When determining custody or visitation of any child of a marriage, the court shall require verification of the status of any child of the marriage with respect to such child's custody and support, including any prior orders, and shall enter orders for custody and support as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties and to the best interests of the child. (Consolidated Laws of New York - Domestic Relations Laws - Article 13 - Sections: 240)
Determining Child Support: The basis for determining a monthly support amount is best achieved by referring to the New York child support worksheet. The worksheet utilizes the child support guidelines that are defined by state law. The court will use this same worksheet as a building block for determining the support obligation, that is if you and your spouse are unable to come to an agreement on this issue.
In determining the appropriate support amount the court will consider the following factors, but not limited to: 1. financial resources of the parties involved, including the children. 2. The standard of living prior to the divorce. 3. The physical and mental health of the children. 4. The tax ramifications. 5. Educational needs of the parents and children. 6. Other children outside the marriage each parent may have. (Consolidated Laws of New York - Domestic Relations Laws - Article 13 - Sections: 236, 240, and 243)
Copyright Notice: These New York divorce laws above are copyrighted by 3 Step Solutions, LLC. This abbreviated and revised version of the state laws has been compiled from applicable state laws and unauthorized reproduction in any fashion is prohibited. Violation of this copyright notice may result in immediate legal action.