New York State Divorce Laws

By Beverly Bird

In 2010, New York became the last state in the country to embrace the concept of no-fault divorce. The legislature added irretrievable breakdown of the marriage to its list of permissible reasons to file. However, like other states, New York will not grant you a divorce until all issues are resolved between you and your spouse even if you’re in agreement that your marriage has simply run its course.

Residency Requirements

New York must have jurisdiction over you and your spouse to grant you a divorce. This means that you must meet residency requirements. New York’s rules for accomplishing this are somewhat complex, but generally, either you or your spouse must have lived in the state for at least one year. However, if the ground for your divorce occurred while you were both living in the state, it’s sufficient if you both live there at the time you file.

Grounds

In addition to the no-fault ground now available, New York also offers four fault grounds. These include adultery, abandonment by your spouse for a year for more, the imprisonment of your spouse for three years or more and cruelty. However, you can only use the cruelty and imprisonment grounds if the events occurred within five years of the time you file. New York will also grant you a divorce if you’ve been legally separated for a year or more.

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Children

New York courts base custody decisions on what is in the best interests of the child. This is not an exact formula, however. A number of different factors contribute to what a judge might consider a child’s best interests, including a parent’s available time to spend with the child. A judge will weigh each parent’s physical and mental health as well as any history of drug or alcohol abuse or domestic violence. If a judge has to decide custody for you, he’ll generally allow your existing parenting arrangement to guide him, even if you don’t yet have a court order. The non-custodial parent pays child support to the custodial parent based on the income shares calculation method. For example, if the non-custodial parent earns 70 percent of the spouses' combined incomes, he would pay 70 percent of the monthly amount the court deems appropriate for the care of the children.

Spousal Support

New York law allows for spousal support or alimony, but the courts decide it on an individual basis. There’s no guarantee any spouse will receive it. Judges are more likely to award alimony after a long-term marriage where one spouse significantly out-earns the other, especially if the under-earning spouse can't adequately provide for her own needs. Alimony might take the form of a monthly sum paid directly to the spouse or payments made toward her living expenses on her behalf.

Property

New York is an equitable distribution state meaning a judge will divide marital property based on which of you contributed most to the purchase of the asset, which of you needs the asset more and factors such as if one of you depleted assets during the marriage. Equitable distribution doesn’t demand a 50/50 split, but judges generally will not stray radically from that equation. In legal terms, equitable means fair, and giving one spouse an extremely disproportionate share of the property would not be fair, except in extreme circumstances.

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References

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