Divorce Law in New York
Divorce Law refers to the legal termination of a marriage and often involves working through several complicated issues. Are you facing a costly divorce in New York? Does your estranged spouse have an attorney? Usually, couples going through a divorce are unable to compromise on most items and reach an agreement on their own. Thus, many couples go through mediation or the court system to resolve their case.
Issues Involved in New York Divorce Law
There are many complicated issues that you need to settle during the divorce process. Many of these elicit strong emotions from one party or the other, resulting in volatility.
One of the most challenging issues in the divorce law process is dividing property, debts and assets. In many states, like New York, anything you and your spouse purchased over your marriage is subject to division. This includes things such as real estate, bank accounts, cars, stocks, etc. Some states split marital property evenly, while others go along an equitable split. In the latter, the judge weighs the contribution each spouse made to the marriage and uses that information to decide the disposition property, which may not equate to a perfect 50/50 division of your property, debt, and other assets.
Both parents are responsible for paying for the care of their children. There is a child support guideline that helps determine how much each parent should contribute based on their income and the amount of time they spend with the children. Child support pays for things such as healthcare, food, clothing and other basic needs.
The New York Department of Social Services bases child support payments on a percentage of the combined incomes of both parents. The payments can be adjusted upwards for additional expenses like medical care and childcare. However, they can be adjusted down if paying them would place the noncustodial parent below the poverty level.
If payments are missed, the New York Office of Child Support Enforcement can seize your property or garnish your wages. In addition, you can lose your driver’s license or be incarcerated for up to 6 months for willful nonpayment.
Alimony, or spousal support, can vary dramatically depending on the marriage, and New York divorce law court looks at multiple factors when determining the amount and length of alimony, including:
- A spouse’s need and the other spouse’s ability to pay
- The age and health of each spouse
- The length of the marriage
- Each spouse’s earning capacity and level of education
- The division of property
- Parental responsibility of the children
- Sole investments and assets of either spouse
A New York law, passed in 2016, sets presumptive amounts and durations for spousal support after a divorce. The court does, however, have discretion to adjust these presumptions depending on the specific circumstances of the divorce. In most New York cases, the amount is based on the relative incomes of both spouses. The duration is typically based on the amount of time they were married.
Child Custody and Visitation
Child custody is perhaps the most emotional issue during a divorce that involves children. The most important thing to keep in mind is that the court bases all decisions on what is in the best interest of the child. Keeping this in mind may help navigate the rough waters of custody.
According to the New York City Bar, courts take numerous criteria into account when determining the best custodial placement. Stability for the child factors heavily, as do the preferences of both parents and the child. There are several issues that can make a New York parent less likely to receive custody:
- Substance abuse
- Mental health issues
- Financial or physical health issues that would affect the ability to care for the child
- Abuse, neglect, or abandonment
Generally, New York courts award joint legal custody giving both parents the legal right to make decisions for the children, such as education, medical care and religious practices. Legal custody has nothing to do with physical custody or visitation. Joint custody does not mean both parents split time with the child evenly, just as sole legal custody does not bar the non-custodial parent from visiting the child.
The Process of Going Through Divorce Law in New York
Are you leaning towards getting a divorce from your partner? If so, it is important to understand the necessary steps of the New York divorce law process.
Step 1: File the Divorce Law Petition
The divorce law process begins when one spouse files a legal petition to terminate the marriage. The petition must include:
- A legal reason for divorce (grounds for divorce)
- A statement that shows at least one spouse meets the state’s residency requirements for divorce
- Other statutory information your state requires
Most states offer the option for filing a no-fault divorce, which does not require a legal reason for the divorce.
New York allows no-fault divorces at the request of either spouse. The only requirement is that the marriage has been irretrievably broken for at least 6 months.
Step 2: Request Temporary Orders
The divorce law process in New York can take several months, and in some cases, spouses cannot wait that long for judgments, but temporary orders can be requested and approved for a multitude of reasons, including:
- Child custody
- Child support
- Spousal support
- Property restraining orders
- Status quo orders
Request temporary orders as quickly as possible so you are not absent the resources or protection that you need.
Step 3: Serve Your Spouse and Wait for Their Response
If you are the one who files a petition for divorce, you must have your spouse served with their divorce law papers and then file a proof of service with the courts. If your spouse accepts service, then they need to fill out an affidavit to that effect. However, in many cases, the petitioner must hire a process server or sheriff to formally serve the petition on the other spouse. It is this third-party who then records the proof of service.
Step 4: Try To Come to an Agreement
The best outcome for anyone going through this process is to have an uncontested divorce, meaning both spouses agree on all issues.
This can be reached between both partners or with the help of a mediator. Not only will this save each spouse money, but there will typically be a lot less animosity.
Step 5: Go To Court
If you and your spouse are unable to reach an agreement, then the case continues before a New York judge. While there is some benefit to having a judge hand down orders, it may also be a detriment as there is little to no control of the agreement by the parties. Divorces in New York are under the jurisdiction of the New York Supreme Court. However, local family courts can decide custody, visitation, and child support issues either before or after the divorce is granted.
Step 6: Receive the Judgement of Divorce
The divorce law trial will end with the official judgment of divorce, ending the marriage. This final dissolution of marriage sets out the details about property and debt division, child custody and all relevant issues between the couple.
Work With an Experienced New York Divorce Law Attorney
If you are going through a divorce and are unable to reach an agreement with your partner, you should hire an experienced New York divorce law attorney. A lawyer will fight for you and make sure you get what is yours. We can even help you connect with an attorney across New York state lines.
Submit a request online or call us today at (866) 345-6784 to get in touch with an experienced lawyer in your area!