A divorce is the legal termination of a marriage between two people, often referred to as “spouses.” Once a divorce is finalized, the spouses are again single and free to remarry if they wish.
In addition to dissolving a marriage, in the process of getting divorced, the spouses must divide up their property and debt and make arrangements for child custody, child visitation, and the payment of child support by one spouse to the other, if necessary.
A court may order one of the spouses to pay alimony to the other if circumstances warrant that. Same-sex divorce proceeds according to the same rules as those that apply to heterosexual marriage.
The state of New York has a residency requirement for getting a divorce. There are several ways to establish the residency one needs to obtain a divorce in New York State, as noted below.
There is both fault and no-fault divorce under New York divorce laws. Generally, it does not matter who files first for a divorce in New York.
Filing for a divorce in New York should be done in the county Supreme Court of the county in which one of the spouses lives. Family Courts do not handle divorce cases in New York as they do in many states.
What Are the 6 Grounds for Divorce in New York?
There are 6 grounds for divorce in New York as follows:
- Cruel treatment: This means that one spouse’s physical and mental health will worsen if they continue to reside together in the same household as the other spouse. There is a time limit on cruel treatment. If the most recent abusive treatment occurred more than 5 years ago, the victim spouse may not claim this ground if their spouse objects;
- Abandonment: Abandonment is when one spouse has left the other for at least a year and does not want to return to the marriage;
- Imprisonment: If one spouse has been incarcerated for 3 or more years, the other has grounds for a divorce. However, if the incarcerated spouse was released more than 5 years ago, the grounds of imprisonment is no longer available;
- Adultery: Adultery occurs when a married person has an intimate relationship with another person who is not their spouse. There is some degree of nuisance in proving adultery. The spouse claiming adultery has to produce witnesses to testify to the adultery. There are also time limits. A person might want to consult an experienced New York lawyer before claiming adultery;
- Judgment of Separation: This means that a person and their spouse have not resided together due to a “Decree of Separation” or “Judgment of Separation” granted by the court for at least 1 year. Once this decree is revealed, there must be strict adherence to it. This is not as common as the other grounds mentioned earlier;
- Separation Agreement: For this claim to succeed, a person and their spouse must not have lived together. There is a written “Agreement of Separation” that has been in effect for at least one year. Both of the spouses must have signed this agreement before a notary, and the agreement must follow the local regulations in the state. A person must have fulfilled all the terms and conditions stated in the Separation Agreement.
The last two grounds, both based on separation, were created as indirect ways to allow people to get a no-fault divorce before no-fault divorce was allowed in New York. But these grounds remain available in appropriate cases today.
No-fault divorce is an option in New York. In a no-fault divorce, a person does not have to claim or prove that the failure of the marriage is the other spouse’s fault. All that has to be stated in one’s divorce petition is that the marriage has been “irretrievably broken” for at least six months. One spouse must state this under oath.
What Are the Residency Requirements for Seeking a Divorce in New York?
As noted above, the state of New York has a residency requirement for getting a divorce. There are several ways to establish the residency one needs to obtain a divorce in New York, as follows:
- At least one of the spouses must have been living in the state of New York continuously for at least two years before the divorce is initiated;
- At least one of the spouses must have been living in New York State continuously for at least 1 year before the divorce is initiated, and:
- The spouses were married in the state of New York;
- The spouses lived in the state of New York as a married couple;
- The events that constitute the grounds for the divorce took place in the state of New York;
- Both of the spouses resided in the state of New York on the day the divorce was initiated, and the grounds for the divorce occurred in New York State.
Why May My Spouse Argue Against My Grounds for Divorce?
A person’s spouse may resist an at-fault divorce and argue against the grounds claimed. They may do this for a variety of reasons. They may not wish to be publicly declared guilty for their divorce. They may not want to get divorced. They may be financially dependent on the spouse seeking the divorce and need support.
Furthermore, it could be because a spouse is concerned about securing retirement funds or having access to health care coverage. Whatever the reason, one spouse may oppose a divorce.
It is important to note that a person may request spousal support both during and after the divorce to ensure their financial security. The need to pay for health insurance may be a factor that a court would consider in determining the amount of spousal support.
What Paperwork Do I Need for Filing for a Divorce?
Even if a person seeks an uncontested, or no-fault, divorce, the process may sometimes become complicated in New York. The first forms a person needs to complete are the Summons with Notice (Form UD-1) and a Verified Complaint (Form UD-2).
The Summons is the form that starts the divorce process and names the spouses as ”petitioner” and “respondent.” Both of these forms require the person preparing them to provide a substantial amount of information.
After filling out the forms, the person initiating the divorce is required to take 2 copies to the office of the court clerk for filing. The court clerk assigns an index number and a filing date. The person must pay a filing fee in order to receive an Index Number. The person must then serve the summons and complaint on the other spouse. This must be done within 120 days of the filing date.
What Is Community Property vs. Separate Property?
New York is not a community property state. Rather, it is an equitable distribution state. In community property states, property that the spouses acquire during the marriage is considered to be owned jointly by the spouses and equally divided when they divorce.
In equitable distribution states, such as New York, the court makes a division of property acquired during the marriage that is fair to both spouses. The court will take into account each spouse’s contributions to the marriage as well as their needs following the divorce.
The following factors are considered by the court when dividing property fairly and equitably:
- The income and property of each spouse on the date of their marriage and on the date of their divorce;
- The financial needs of both parties to the marriage;
- The age of each individual; and
- Whether alimony will be awarded to either party.
What Should I Do if There are Children Involved?
In a divorce in the state of New York, if there are children and child custody is an issue, the court is granted broad discretion in considering the child’s best interest. The law requires the court to only consider what will encourage the happiness and well-being of the child, as well as the facts and circumstances of the specific family situation.
However, the spouses might reach an agreement regarding these issues, and the agreement clearly serves the best interests of the child. If that is the case, that agreement determines the custody arrangement, and the court does not have to decide the issue. With regard to child support payments, pursuant to New York’s Child Support Standards Act, child support payments are paid by the non-custodial parent to the custodial parent.
Can I Receive Spousal Support?
After a couple separates, a court can temporarily award spousal support while the divorce case is in process. Before the divorce is finalized, the court considers various factors and grants the necessary maintenance to the spouse who needs it. Many states have specific guidelines or even formulas for spousal support. Courts utilize these formulas and grant alimony awards accordingly.
This is the case in New York. There is a website that has an online calculator people may consult to find out what they might have to pay as alimony or the amount they may be eligible to receive. Spousal support aims to provide the financially dependent spouse the support they need until they can achieve financial independence.
What if I Cannot Afford a Lawyer?
States now have several resources that can help a person filing for divorce on their own. It is important to note that if a person agrees with all of the terms, they can file a divorce in a more simplified way. However, if the spouses disagree about the terms of their divorce, it is more challenging, and seeking professional legal counsel may become necessary.
Divorce cases can also consist of custody, child support, spousal support, and marital debt. The entanglement of these issues can become complicated. Property division may also become a problem in divorce cases. There can be disagreements about these issues. Judges make determinations based on the local guidelines and laws regarding the division of marital property.
However, a person can find an attorney to represent them in their divorce, even if they have a low income. A person needs to contact their local non-profit legal aid society office if they need a lawyer to represent them at a low or no cost. Depending on a person’s case, they may be able to provide you with free legal assistance.
It is also important to remember that a judge can order the spouse who has more financial resources to pay the attorney’s fees of the other spouse.
Attorneys are especially needed through contested divorces because there are a number of court hearings for the issues that must be resolved. It is best if a person can find a lawyer to represent them in cases of this type.
When Do I Need the Help of a Lawyer for My New York Divorce?
You may reside in the state of New York and need more information regarding how to obtain a divorce in the state. If so, you want to consult a New York divorce attorney to help you with your situation. LegalMatch.com can connect you to an attorney who can provide you with legal advice and can represent you in negotiations and in court to make sure your rights are protected.
