Filing for Divorce in New York
Divorce Law Cheat Sheet for the State of New York
1. Does New York have any residency requirements to be eligible to file for divorce? If so, must both parties be in the state for the same length of time?
To file for a divorce in New York, one of the following residency requirements must be met:
- The parties were married in New York State, and either the husband or wife lived in New York for one year prior to starting the divorce.
- The parties lived in New York as husband and wife, and either party lived in New York for one year or more prior to filing.
- The grounds for the divorce took place in New York, and either party lived in New York for one year or more prior to filing.
- The grounds for the divorce took place in New York, and both parties live in New York at the time of filing.
- Either party has lived in New York for two years or more prior to filing.
2. Does New York have a waiting period?
There is no waiting period in New York.
3. Does the state have grounds for divorce?
New York allows the following grounds for divorce:
- Cruel and inhuman treatment.
- Abandonment for one year or more.
- Imprisonment for three years or more.
- Living apart pursuant to a judgment of separation for one year or more.
- Living apart pursuant to a written separation agreement for one year or more.
- Irreconcileable differences (beginning in 2010).
4. How does New York determine the division of property?
New York is an equitable distribution state. Under the doctrine of equitable distribution, marital property may only be divided when there is a divorce or an annulment. If the parties remain married, then the court is without authority to distribute marital assets. In dividing marital property, the court will apply the 13 factors listed in Domestic Relations Law 236B(5) and decide how to distribute the marital property to each spouse.
There is no requirement that property be equally divided, although for longer marriages this will often be the case. In general, the court will look at the length of the marriage, the health and financial circumstances of both spouses, and the nature of each asset.
Marital property is any asset acquired from the date of the marriage to the date on which the divorce is filed, except for gifts, inheritances, personal injury awards for pain and suffering, and property acquired by separate assets.
Marital property may include such assets as the marital home, the increase in the value of separate property, pensions and retirement accounts, businesses, stocks, and any other item of value. New York also has a special rule unique in the United States “ a professional license is also considered a marital asset if it was acquired during the marriage. For example, licenses such as an MD, JD, or even a teaching degree will be divided in a divorce.
5. Does your state require mediation before a divorce is granted?
There is no requirement for mediation prior to a divorce being granted.
6. How does the state determine child custody?
Child custody is based on the best interests of the child. In determining what is in the child’s best interests; the court will use a number of factors to determine which parent is the better parent.
7. How does the state calculate child support?
Child support is based on a percentage of the noncustodial parent’s adjusted gross income.
- One child: 17 percent
- Two children: 25 percent
- Three children: 29 percent
- Four children: 31 percent
- Five children: 35 percent
8. How does New York determine and calculate alimony?
In New York State, alimony is called maintenance”; the term alimony” applies only to cases filed prior to July 1980. Unlike child support, there is no specific formula to determine maintenance. Instead, the court will look to the finances of both spouses to determine whether maintenance is appropriate and, if so, whether it should be short-term or for the lifetime of the receiving spouse. There are 11 factors used in making this determination.
FOR MORE INFORMATION:
The following websites are helpful to anyone involved in a divorce or family law matter:
The New York State Unified Court home page. Here you’ll find court forms that may be downloaded at no charge, including the uncontested divorce package. Many court decisions are available. Case tracking is also available — be notified of your court date in advance and double-check upcoming court dates.
These laws of New York State.
Information verified by:
Name: J. Douglas Barics
Years in Practice: 14 years as of 2008
Law School: Brooklyn Law School
Firm: Law Office of J. Douglas Barics
Concentration: Divorce and Family Law
Firm website: www.jdbar.com and www.jdbar.net (blog)
Firm Telephone Number: 516-829-4600
Please note: Local and state laws change constantly, therefore this information is for educational purposes only. We do our best to keep state-specific information up-to-date, but please contact us to discuss your unique situation.