Couples who are considering divorce have many issues to consider, from the requirements to filing for divorce, to division of property, to custody of their children. Since the laws governing divorce vary from state-to-state, it can be difficult for couples to know how their state’s laws will impact their family as they transition through a divorce. New York couples can better prepare for their divorce by understanding how state law affects 7 common aspects of divorce. Here’s how to file for divorce in NY:
- Residency requirement
There are two requirements to file for divorce in the state of New York. The first is the residency requirement, which can be met in several ways:
- You or your spouse have lived continuously in New York for two years before filing for divorce
- You or your spouse have lived continuously in New York for one year and either:
- You were married in New York
- You resided in New York as a married couple
- The grounds for your divorce occurred in New York
- Both you and your spouse are residents of New York and the grounds for your divorce occurred there
- Grounds for divorce
The second requirement for filing for a divorce in New York is having a legally valid reason for divorcing, known as grounds for the divorce. New York law allows for 7 acceptable grounds for divorce, in addition to no-fault grounds:
- An irretrievable breakdown of the marriage for a period of 6 months
- Cruel and inhumane treatment
- Divorce after a legal separation agreement
- Divorce after a separation judgment
- Division of property
New York is what is known as an equitable distribution state. This means that the division of property and other assets during a divorce must be distributed equitably. An equitable distribution does not, however, mean that the court will split the assets equally. Instead, the court looks at the contribution of each spouse during the marriage, as well as the assets needed for each spouse to start a new life. The court will consider a number of factors including, but not limited to, the income of each spouse, the duration of the marriage, and whether spousal maintenance has been awarded.
- Child custody
The standard for determining child custody in New York and elsewhere is a consideration of what custody arrangement is in the best interest of the child. There are a number of factors that the court will consider, including each parent’s ability to care for the child, the health of each parent, and their respective work schedules.
- Child support
New York parents can choose to waive child support. If not waived, child support is paid by the non-custodial parent (the parent who has custody less than half of the time) and is calculated by a statutory formula that takes a percentage of the non-custodial parent’s gross income after withholdings. In cases where the court cannot determine who the non-custodial parent is, the parent with the higher income will pay child support.
- Spousal maintenance
After a divorce, the court may award spousal maintenance to one spouse. Spousal maintenance can be awarded for life or, more usually, for a set period of time. To determine whether spousal maintenance is appropriate, the court weighs a number of factors, including the present and future earnings of each spouse, where the children live, and whether the party seeking maintenance has the ability to become self-supporting in the future.
- Preliminary conference
New York law requires couples filing for divorce to attend a preliminary conference. During the conference, the parties are asked to agree on certain terms of the divorce, such as who will occupy the marital home. The parties will also exchange information, such as financial statements, that the court will need to determine issues raised in the divorce.
Levoritz Law Firm provides a variety of legal services, including divorce representation, to New York residents. Our family law team is comprised of the following highly skilled attorneys: Yonatan Levoritz, Karolina Krasnyanskaya, Evgen Tereshchenkov, Michael Zappi, and Miechia L. Gulley. To schedule a consultation, please check out our contact page today.