[column type=”one-half” last=”false”]Asking your spouse for a divorce, or being asked for a divorce, is seldom a pleasant experience. It can be a surprise for some. For others, it is the inevitable step in a long process. To be able to move forward, it is important to know your legal rights and responsibilities.
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New York Divorce Laws
Ways To End A Marriage In New York
Child Support and Visitation
Division of Assets and Debts
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- ADR Available: Yes
- Fault or No Fault: Fault
- Parenting Plan Required: No
- Property Distribution: Equitable
Grounds For Divorce
In New York, the person who files for divorce is called the plaintiff. The person who is being sued for divorce is called the defendant. New York requires grounds (a reason or fault) for divorce. Grounds for divorce are:
- Abandonment for one year or more
- Cruel and inhuman treatment
- Imprisonment for three years or more
- Irretrievable breakdown in relationship for a least six months (this is the “no-fault” option)
- Living separate and apart for one year or more
When the plaintiff files for divorce, and cites the grounds for divorce, the defendant can either agree to the grounds (uncontested) or disagree (contested). It’s important to note that when grounds such as adultery are cited, that they must be proven. He said-she said is not enough.
Divorce Waiting Period And Residency Requirement
There is a waiting period before divorce proceedings can begin. The requirements that must be met are:
- You and your spouse must be New York residents for at least two years OR
- You and your spouse have been New York residents for one year and meet one of the following requirements: marriage performed in New York; live in New York as though you are married
- You OR your spouse have been New York residents for one year prior to filing for divorce and the grounds for divorce occurred in New York
- You AND your spouse are New York residents and the grounds for divorce occurred in New York
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Contested Or Uncontested Divorce
If both of you agree to the divorce and agree to the main points of child custody and property division, your divorce will be uncontested. You may still wish to have an attorney assist you with the forms, although you and your spouse will have done the important work on your own.
If you’re close to being in agreement, you could use one of the ADR methods to work out any remaining disagreements. When there are major disagreements, your divorce will be considered contested and could end up going to trial. The main reasons to contest a divorce are:
- The defendant does not want a divorce
- The parties disagree on the grounds for divorce
- The parties disagree on major issues such as child custody and division of property
In a contested divorce, it is important that you have skilled legal representation to protect your best interests, and that of your children.
Alternative Dispute Resolution (ADR)
The state of New York has several types of ADR services available, and this may work for some couples. All forms of ADR are intended to lessen the conflict and speed up the process. The ADR that is available in New York includes:
- Arbitration: A neutral third party, usually a retired judge, hears both sides and then decides on an outcome. It can be binding (final and legal) or nonbinding (can still go to a trial).
- Case Conferencing: Both sides meet with a judge to try to resolve issues before going to trial.
- Collaborative Family Law: Each party has a lawyer and the goal is to resolve issues. If this doesn’t work, each side must get new lawyers to go to trial.
- Mediation: A neutral third party works with the couple to try to resolve any disputes. The mediator helps the parties communicate.
- Neutral Evaluation: A neutral third-party lets the parties know the likely outcome if the divorce were to be tried.
- Summary Jury Trials (SJT): The parties present their cases to a jury, which makes an advisory decision, rather than a binding decision.
Another way to end a marriage is with an annulment. An annulment is a way of saying that the marriage was never legal. Grounds for annulment of a marriage in New York are:
- Bigamy (marriage when still married to another person)
- Either spouse is permanently incapable of having sexual intercourse
- Either spouse is not yet 18 years old at the time of the marriage
- Inability to consent to the marriage (mental incapacity for example)
- Incest (marriage to close relatives)
- Incurable insanity
- Marriage occurred due to fraud or force
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One of the most difficult issues to deal with during a divorce is that of child custody. Even when the parents are behaving in a respectful manner, the children can feel as though their lives are being torn apart. In court, as well as in life, the best interests of the child should be the foremost considerations.
Child Custody Determinations
Ideally, the parents will come to an understanding regarding the living arrangements for their children. There are two forms of child custody which are legal custody and physical custody.
Legal custody is the right to make important determinations about a child’s upbringing or well-being. Examples of this are the type of religion to follow, school to attend or medical treatment.
Physical custody is where the child is living, or the location a child will call “home.” When there is shared physical custody, the child will have two homes – one with each parent. When the court determines that sole physical custody is appropriate, the child will have one home with the primary parent and will have visitation with the noncustodial parent.
It is typically in the parents’ best interest for the parents to agree on a child custody arrangement. If the parents do not agree, the court will decide, and neither parent could end up happy with the arrangement. The court uses the following factors to determine child custody:
- Any history of abuse
- The “fitness” of each parent
- The current living situation (and length of time)
- The emotional and intellectual support each parent can offer the child
- The existence of other siblings
- The past primary caretaker
- The quality of each parent’s home environment
If the child or children are old enough, the court will ask the child’s opinion. There is no longer a preference for the child to be with the mother, or to have a single custodial parent. Shared parenting is commonplace and is preferred in New York.
Visitation And Parenting Plans
Some states require that a visitation or parenting plan be a part of the divorce decree. New York does not require a parenting plan. The visitation schedule is at the court’s discretion.
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Child support is an amount of money that one parent may be ordered to pay to the other parent for the care and support of a child. The amount of child support that may be ordered is dependent upon several factors including each parent’s net income minus any child support requirements for children from a previous marriage.
Using round numbers for illustration purposes, New York child support could be calculated as:
- Parent A – net income $50,000
- Parent B – net income $100,000
- Combined income ($150,000) times 17 percent (percentage set by the state) for one child equals $25,500
- $25,000 is divided between each parent so that parent A is responsible for 1/3 of the monthly amount ($708) and Parent B is responsible for 2/3 of the monthly amount ($1,417).
There are many more factors which are taken into consideration, and an attorney should be consulted for a more accurate determination of your potential child support determination.
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There are three simple concepts about property and marriage to consider. First, everything you owned before you were married is still yours, unless it has been comingled. Second, everything acquired during your marriage belongs to both you and your spouse. Third, property includes both assets and debts.
Division Of Property Or Marital Assets
One of the important forms that you will need to complete as part of the divorce process is called a Statement of Net Worth. It includes every liquid and nonliquid asset as well as financial obligations such as credit card debt. It is important that this form is completed fully and accurately, as the court will use it to make a determination of the division of property.
In New York, the guideline for the division of property is that it should be divided in an equitable fashion. It’s important to note that equitable is not the same as equal. Some assets can’t be divided, such as the family dog. Other assets, such as the family home, could be divided at a later date, such as when the children graduate high school.
Alimony Or Spousal Support
In some instances the court will award one spouse alimony or spousal support. Also called spousal maintenance, this is an amount given at the court’s discretion. It will depend upon several factors such as the length of the marriage, the amount each spouse contributed to the family income, whether one spouse is the primary childcare provider and other factors.
Prenuptial And Postnuptial Agreements
According to the latest U.S. Census Bureau survey, there are 14.8 women and 16.8 men per 1,000 in New York who marry every year. Conversely, there are 6.6 men and 7.3 women per 1,000 who divorce each year. This is one of the lowest divorce rates compared to other U.S. metropolitan areas.
One of the reasons may be that New Yorkers tend to stay single longer. When that happens, there is a chance that more assets have been built, which is an excellent reason for a prenuptial agreement. A prenuptial agreement is a binding agreement that states how the couple would treat their assets, debts and child custody issues and other matters in the event of a divorce.
Another reason people use a prenuptial agreement is in the event of second marriages with children from a previous marriage. The prenup could protect the inheritance of the existing children, or stipulate the custody of any new children from the marriage.
A postnuptial agreement is written after the marriage, and typically includes the same sort of issues such as division of property or child custody. Some couples use it during times of crisis, such as when one is fighting an alcohol or gambling addiction. Others use it after an unexpected financial windfall such as an inheritance.
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After a divorce, situations can change which could change the child support amount, the child custody arrangement or the alimony amount. When major life changes occur, a post-divorce modification may be needed to codify any agreed-upon changes within the divorce agreement. Common reasons for post-divorce modifications include:
- Ill health or medical condition of either spouse
- Medical needs of a child
- Loss of a job or income (change of child support)
- Relocation of a parent (change of child custody)
Not every major event post-divorce is going to make a post-divorce modification necessary. Consult with a local New York divorce attorney for advice.
[alert type=”danger” close=”false” heading=”Important Note”] Please be aware that the information on this page is provided for illustration purposes only and it does not constitute legal advice. If you would like more information about the divorce laws in New York or the process of filing for divorce, connect with an experienced local attorney today by filling out the contact form. We make it easy to find and connect with a local divorce attorney. It’s Free and Safe! [/alert]