Divorce Law in New York
Are you preparing for a costly separation in New York? Is your spouse already working with an attorney?
When couples cannot resolve disagreements on their own, mediation or the court system is often required to reach a final agreement.
Issues Involved in New York Divorce Law
A divorce requires spouses to address several important issues before the marriage can officially end. These subjects often involve finances, parenting, and property, which can lead to conflict and strong emotions.
Dividing Property
Sorting out property and financial assets is one of the most complex aspects of a divorce. In many states, including New York, most assets acquired during the marriage are considered marital property. This can include real estate, bank accounts, retirement savings, cars, and personal belongings.
Some states divide everything 50/50, but others follow equitable distribution. New York uses equitable distribution, meaning the judge attempts to divide assets fairly rather than equally. To do this, the court reviews each spouse’s contribution to the marriage, earning potential, and other financial circumstances before deciding how property, debt, and assets will be divided.
Child Support
Both parents must continue providing financial support for their children. Child support helps pay for everyday needs like food, clothing, medical care, and school-related costs.
The New York Department of Social Services calculates support based on a percentage of both parents’ combined income. Adjustments may be made for extra expenses, such as childcare or medical care. Payments can also be lowered if they would push the non-custodial parent below the poverty line.
If a parent fails to pay, the New York Office of Child Support Enforcement has several enforcement tools, including wage garnishment, property seizure, tax refund intercepts, and driver’s license suspension. Willful nonpayment can even lead to incarceration for up to six months.
Alimony
Alimony, also known as spousal maintenance, depends heavily on the financial circumstances of the couple. When determining the amount and duration, a New York court may consider:
- 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 education
- The division of property
- Parental responsibilities
- Assets held by either spouse
A New York law passed in 2016 established presumptive formulas for calculating spousal maintenance. Judges may adjust these guidelines if special circumstances exist. The amount of support typically depends on income, while the length of time support is paid often aligns with the length of the marriage.
Child Custody and Visitation
Child custody issues are often the most sensitive part of a divorce. In every case, the court must make decisions that serve the best interest of the child.
According to the New York City Bar, judges examine many factors when awarding custody, including the stability of each home, the parents’ physical and mental health, and the child’s personal needs. Certain issues can make one parent less likely to be awarded custody, such as:
- Substance abuse
- Mental health concerns that affect parenting
- Neglect or abuse
- A history of abandoning the child
Generally, New York courts award joint legal custody, meaning both parents share decision-making authority about healthcare, education, and religious upbringing. Joint legal custody does not decide where the child lives day-to-day, and the non-custodial parent may still receive visitation rights.
The Process of Going Through Divorce Law in New York
If you are considering divorce, it is helpful to understand how each step works.
Step 1: File the Divorce Law Petition
The divorce process begins when one spouse files a petition to dissolve the marriage. The petition must show a legal basis for divorce, prove residency requirements are met, and include required state documents.
New York allows no-fault divorce. A spouse may file if the marriage has been irretrievably broken for at least six months.
Step 2: Request Temporary Orders
Some spouses need temporary court orders while the case is pending. These may involve child custody, child support, spousal support, or property restrictions. Temporary orders remain in effect until the court finalizes the divorce.
Step 3: Serve Your Spouse and Wait for Their Response
The spouse who files the petition must ensure the other spouse is formally served with divorce documents. If the spouse accepts service, they complete an affidavit confirming receipt. If not, a sheriff or professional process server will handle service and file proof with the court.
Step 4: Try To Come to an Agreement
The simplest outcome is an uncontested divorce, where both spouses agree on every issue. Couples may negotiate on their own or work with a mediator. This approach saves time and money and generally reduces conflict.
Step 5: Go To Court
If no agreement can be reached, the case moves forward in the New York Supreme Court, which has jurisdiction over divorce cases. Family Court may handle child custody, visitation, and support issues before or after the divorce is finalized.
Step 6: Receive the Judgement of Divorce
The judge will issue a final judgment that legally ends the marriage. The judgment explains how property, debts, custody, and support will be handled going forward.
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!
About the Author
Aaron is a professional legal writer with a B.S. in English Education from Southern Illinois University – Carbondale. He has written, published, and edited thousands of legal articles for RequestLegalHelp, which has connected over 5 million people to legal help in the United States.
With over five years of experience writing thousands of legal articles for law firms across the U.S. and Canada, Aaron specializes in covering federal, state, and city-level legal issues ranging from auto accidents to wrongful terminations.
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