In the state of New York, there is a specific set of laws pertaining to divorce. If you are married and reside in New York and are considering going this route, it's essential to understand the state's divorce laws.
What are the Residency Requirements?
In order to file for divorce in New York, one or both spouses must meet the state's residency requirement. The residency requirement may be fulfilled in one of the following ways:
One of the spouses lived in New York State continuously for a minimum of two years before the divorce case started
One of the spouses lived in New York State continuously for a minimum of one year before the divorce case began, and they meet one of the following conditions:
The spouses were married in New York State
The spouses lived in New York State as a married couple
The grounds for the spouse's divorce occurred in New York State
Both spouses are residents of New York State and lived in the state on the day the divorce started, and the grounds for the divorce occurred in New York State
Legal Grounds for Divorce in New York
Along with the residency requirement, a divorcing couple must have a "ground," or a legally acceptable reason for the divorce. In New York State, there are seven grounds for divorce. They include the following:
Cruel and inhumane treatment of one spouse by the other that makes it unsafe for the two to continue residing together
Abandonment for at least one year
Confinement in prison of one spouse for three or more years
Adultery
The parties have lived separately after getting a legal separation for one year or longer and all the terms and conditions of the decree
The parties have lived separately for one year or longer after having agreed to a written separation agreement and successfully meeting all the terms and conditions of that agreement
The relationship has irretrievably broken down for at least six months
Property Division
New York is an equitable distribution state, which means all property incurred during the marriage is divided fairly and equitably. Property that was acquired during the marriage is considered "marital property." On the other hand, property acquired through a gift, inheritance, or before the couple was married, is considered "separate property." If either spouse owned property separately before the marriage, that property would remain their own after a divorce.
Certain factors determine how marital property is divided. These factors can include:
Each person's income
The monetary amount of their separate property
The length of the marriage
The health and age of the spouses
Tax consequences to each spouse
Any other factors the court deems fair and relevant
Spousal Support Guidelines
In a divorce, the court can order spousal support, meaning one spouse must pay the ex-spouse after the divorce is finalized, or while the case is pending. The purpose of spousal support is that it allows each party to live a similar lifestyle to the one they were accustomed to during the marriage. Additionally, it can provide a spouse with income while they become self-supporting.
The amount of spousal support that a spouse receives depends on several factors. These can include each party's ability to be self-supporting, the length of the marriage, and the circumstances of the divorce. While there is a formula based on each spouse's income that calculates the support amount, the court can use their discretion and order a different amount if they find that it is needed.
The amount of time spousal support will last is based on the length of the marriage. In marriages that are 15 years or less, spousal support will be paid for 15% to 30% of the length of the marriage. In marriages that were 15 to 20 years, spousal support will last 30% to 40% of the length of the marriage. Lastly, in marriages lasting over 20 years, spousal support must be paid for 35% to 50% of the length of the marriage. Additionally, spousal support payments will end if the recipient spouse remarries or either spouse passes away.
Child Custody and Support
Above all else, child custody matters are determined based on the best interests of the child. There are two kinds of custody that can be awarded - physical and legal custody. The parent who the child lives with has physical custody, and the parent who makes decisions on behalf of the child has legal custody.
Overall, joint legal custody is the most common form of child custody in New York. The child lives with one parent while the other parent receives visitation with the child. At the same time, both parents equally share the decision-making responsibility regarding the child's wellbeing.
When deciding child support, the court considers each family's situation. The amount of child support will depend on the financial resources of each parent, the standard of living before the divorce, tax consequences, the physical and mental health of the child, the educational needs of the child and parents, and whether there are siblings involved.
Ready to File For Divorce?
If you meet the state's requirements to file for divorce, reach out to the Westchester County attorneys at Friedman & Friedman, PLLC. With over 90 years of combined experience handling divorce and family law cases, our firm provides the most knowledgeable and experienced representation possible. We are happy to answer and address any questions or concerns you have about your divorce in order to help you make an informed decision that best aligns with your goals.
If you are considering filing for divorce in New York, contact an attorney at Friedman & Friedman, PLLC today at (914) 873-4410.