If you are considering a divorce in New York, it can be beneficial to understand the laws that the state follows when deciding matters of divorce. Knowing the rules of divorce in New York will help you ensure that you are within legal guidelines when you file for your own divorce.
Divorce Laws In New York
- Residency requirements – New York has strict residency requirements for those seeking divorce. You or your spouse must have lived in the state for a year to file for divorce.
- Filing requirements – You must file for your divorce in the county that you or your spouse resides in. You must pay for an Index Number as well as a Summons With Notice at the county clerk's office to have your divorce completed.
- Name change – Either spouse can request to have his or her name returned to its pre-marriage status as part of the divorce proceedings.
- Legal grounds for divorce – New York is specific about what constitutes grounds for divorce. These include: adultery, abandonment for a year or more, cruel and inhumane treatment, living apart for a year or more as part of a separation judgment, living apart for a year or more as part of a written separation agreement, irretrievable breakdown of the relationship.
- Using the irretrievable breakdown of the relationship as a reason for divorce requires one spouse swear this under oath, and that the divorcing parties must reach an agreement about all aspects of the divorce, including child custody, support, division of property, visitation and anything else applicable to the divorce.
- Annulment – It is possible to have a marriage annulled, or found to be not legally valid, based on grounds of bigamy, marriage that occurred when one party was under the age of consent, physical incapacity, marriage as a result of coercion, incurable insanity for five years or more, mental incapacity to understand the concept of marriage.
- Property division – New York practices equitable division. This means all property involved in the marriage will be divided equitably if decided by the court. Equitable division will be determined based on factors including: duration of marriage, age of both parties, health of both parties, income of each party, custodial parent needs, maintenance awards, probably future financial outlook of both parties and more.
- Spousal support – New York can award spousal support in certain circumstances. To decide the nature and extent of this support, the court will consider a number of factors, including: length of marriage, circumstances of the marriage and divorce, ability of each spouse to support him or herself, earning potential of each spouse, cost and time required to educate or train each spouse to earn for him or herself, children in the relationship, income and property awarded based on property division and other factors.
- Child custody – New York bases all child custody decisions on the best interests of the child. If the parents cannot come to an agreement on who will look after the child upon divorce, the court will make a decision based on a number of factors. These include: the child's desire to live with one parent or the other, stability of each party, care given by each party to the child, morality of each parent, the effect separation of siblings will have on each child, available time each parent has for the child, financial outlook of each parent, past behavior of each parent and other factors.
- Child support – New York uses the Income Shares model to calculate child support. This takes into account both parents' incomes. The court will consider a number of factors when deciding on the amount of child support, including: tax ramifications, mental health of the child, physical health of the child, standard of living in the household prior to divorce, financial resources of both parents, education needs of all parties and additional children that each parent may have outside the marriage.
- Legal separation – New York allows legal separation as a result of five possible actions. There are: adultery, cruel and inhumane treatment, neglect of support, confinement in prison for three or more years and abandonment. Evidence of a reconciliation is legal cause to end the legal separation.