New York Divorce State Laws

Unhappy couple
  PhotoAlto/Frederic Cirou/Getty Images 

To get an annulment, divorce, or separation, the following residency requirements must be met:

  • If the couple was married in the state and at least one spouse has been a resident of the state for a continuous period of one year prior to filing.
  • The couple has resided in the state as husband and wife, and either party has resided in the state for a continuous period of one year prior to filing.
  • Either party has been a resident of the state for a continuous period of at least two years immediately preceding the commencement of the action.

[Based on New York Domestic Relations Laws - Article 13 - Sections: 230]

Legal Grounds for Divorce

No-fault Grounds:

As of October 12, 2010, New York is now a “no-fault” divorce law state. Meaning you can get a "no-fault" divorce if, according to either party, the marriage has "broken down irretrievably" for a period of at least six months.

Fault-Based Grounds:

In New York, you can file for a fault-based divorce for any of these reasons:

  • Cruel and Inhuman Treatment: This includes physical, verbal or emotional abuse that endangers your physical or mental well being to the point that it is "unsafe or improper" for you to live with the abuser. The judge will require more than that you simply did not get along with one another. The judge will be looking for specific instances of cruelty that occurred in the last five years.
  • Abandonment: To file for divorce based on abandonment, your spouse must have abandoned you for a period of one or more years. Specific examples of abandonment by your spouse include a physical move from the home or locking you out of the home. Also, if your spouse has refused to engage in sexual relations with you for at least one year, this can also qualify as abandonment and is known as "constructive abandonment."
  • Three Consecutive Years Imprisonment: This is a ground for divorce if your spouse has been in jail for three or more years in a row beginning after your marriage. Once your spouse has been in jail for three years in a row, you can file for divorce while your spouse is still in jail or up to five years after release from jail.
  • Adultery: You must be able to show that your spouse committed adultery during the marriage. This is usually hard to prove in court since you need evidence from a third party - someone besides you or your spouse.

Legal Separation

A couple may receive a judgment separating the parties from bed and board, forever, or for a limited time, for any of the following causes:

  • The cruel and inhuman treatment.
  • The abandonment of the plaintiff by the defendant.
  • Failure to support the other spouse.
  • Adultery
  • The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.

[Based on New York Domestic Relations Laws - Article 11 - Section: 200]

Property Distribution

New York is an equitable distribution state, meaning that marital assets will be divided in an equitable, but not necessarily equal fashion, except where the parties have entered a prenuptial or antenuptial agreement. In determining an equitable disposition of property, the court shall consider:

  • The income and property of each party at the time of marriage, and at the time of the commencement of the action.
  • The duration of the marriage and the age and health of both parties.
  • The need of a custodial parent to occupy or own the marital residence and to use or own its household effects.
  • The loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution.
  • Any award of maintenance.
  • Any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having a title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party.
  • The liquid or non-liquid character of all marital property.
  • The probable future financial circumstances of each party.
  • The impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party.
  • The tax consequences to each party.
  • The wasteful dissipation of assets by either spouse.
  • Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration
  • Any other factor which the court shall expressly find to be just and proper.

[Based on New York Domestic Relations Laws - Article 13 - Section: 236]

Alimony/Maintenance/Spousal Support

Either spouse may be awarded spousal support. In determining the amount and duration of maintenance the court shall consider:

  • The income and property of the respective parties including marital property distributed in the divorce.
  • The duration of the marriage and the age and health of both parties.
  • The present and future earning capacity of both parties.
  • The ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary to become self-supporting.
  • Reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage.
  • The presence of children of the marriage in the respective homes of the parties.
  • The tax consequences to each party.
  • Contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party.
  • The wasteful dissipation of marital property by either spouse.
  • Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration.
  • Any other factor which the court shall expressly find to be just and proper.

[Based on New York Domestic Relations Laws - Article 13 - Section: 236]

Spouse's Name

In any action dissolving a marriage, the final judgment shall contain a provision that each party may resume the use of his or her pre-marriage surname or any other former surname. [Based on New York Domestic Relations Laws - Article 13 - Section: 240-a]

CHILD SUPPORT:

New York uses the Income Shares Model for the determination of child support. Child support may be ordered for the care, maintenance and education of any un-emancipated child under the age of twenty-one years. "Child support percentage" shall mean:

  • Seventeen percent of the combined parental income for one child.
  • Twenty-five percent of the combined parental income for two children.
  • Twenty-nine percent of the combined parental income for three children.
  • Thirty-one percent of the combined parental income for four children.
  • No less than thirty-five percent of the combined parental income for five or more children.

The court shall calculate the basic child support obligation based upon consideration of the following factors:

  • The financial resources of the custodial and non-custodial parent, and those of the child.
  • The physical and emotional health of the child and his/her special needs and aptitudes.
  • The standard of living the child would have enjoyed had the marriage or household not been dissolved.
  • The tax consequences to the parties.
  • The non-monetary contributions that the parents will make toward the care and well-being of the child.
  • The educational needs of either parent.
  • A determination that the gross income of one parent is substantially less than the other parent's gross income.
  • The needs of the children of the non-custodial parent for whom the non-custodial parent is providing support who are not subject to the instant action and whose support has not been deducted from income.
  • Any other factors the court determines are relevant in each case.

[Based on New York Domestic Relations Laws - Article 13 - Section: 240]

PREMARITAL AGREEMENT:

A premarital agreement made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded. Such an agreement may include:

  • A contract to make a testamentary provision of any kind, or a waiver of any right to elect against the provisions of a will.
  • Provision for the ownership, division or distribution of separate and marital property.
  • Provision for the amount and duration of maintenance or other terms and conditions of the marriage relationship, (subject to the provisions general obligations law), and provided that such terms were fair and reasonable at the time of the making of the agreement and are not unconscionable at the time of entry of final judgment.
  • Provision for the custody, care, education and maintenance of any child of the parties, subject to the provisions of section two hundred forty of this article.

[Based on New York Domestic Relations Laws - Article 13 - Section: 236]