FAQ – Divorce
New York has seven grounds for divorce. They are (1) Cruel and inhuman treatment, (2) Abandonment for one year or more, (3) Adultery, (4) Imprisonment for three years or more, (5) Living apart pursuant to a judicial separation for one year or more, (6) Living apart pursuant to a written separation for one year or more, (7) Irretrievable breakdown of the marriage for six months or more. For additional information, see DRL 170 and the article "Divorce Grounds in New York."
This is rarely a problem since 2010 when New York adopted no fault under DRL 170(7). In the rare instances where 170(7) does not apply, there are other options. Lack of support constitutes grounds for a separation action. In addition, a spouse may file a proceeding for support against his or her spouse. See DRL 200, FCA 412, and the article Grounds for a New York Separation
This is rarely a problem since 2010 when New York adopted no fault under DRL 170(7). In the rare instances where 170(7) does not apply, there are other options. Lack of support constitutes grounds for a separation action. In addition, a spouse may file a proceeding for support against his or her spouse. See DRL 200, FCA 412, and the article Grounds for a New York Separation.
Yes. The court can authorize service of the divorce action by substituted service if it is shown that the location of your spouse cannot be determined. Substituted service can include service on member of your spouse's family or service by publication in a newspaper.
Child support in New York is a percentage of the non custodial parent's adjusted gross income. For one child, it is seventeen percent. Two children, twenty five percent, three children, twenty nine percent, four children, thirty one percent, and for five children or more children, no less than thirty five percent. For additional information, see DRL 240 or FCA 413, and the article "Child Support in New York."
Marital property is any asset acquired by either spouse during the marriage. However, there are a few exceptions. For additional information, see DRL 236B(5) and the article "Equitable Distribution."
Gifts to one spouse, an inheritance, personal injury awards for pain and suffering, and property acquired by separate property. For details, see DRL 236B(5) and the article "Equitable Distribution."
In New York, marital property in is divided under the theory of equitable distribution. Under equitable distribution, the court may only divide marital property when the marriage is dissolved. Each spouse receives an equitable, or "fair" share of the marital property based on the overall facts of the case, based on the thirteen factors of Domestic Relations Law (DRL) 236B(5). For further reading, see "Equitable Distribution"
Under community property, both spouses have a vested right in the marital property at any time, independent of a divorce. Under equitable distribution, a non titled spouse may assert his or her claim to marital property only when the status of the marriage is changed.
The court has no authority to distribute marital property if a divorce or annulment is not granted.
As of 2016, there is a set formula for maintenance. The court will calculate an award of maintenance in accordance with the formula for post divorce maintenance found in Domestic Relations Law (DRL) Section 236B(6). For additional information, see the article on New York Maintenance.
No single factor will determine custody. The court will look at the overall facts and circumstances and determine what is in the best interests of the children. Some of the more significant factors are (1) which parent is more likely to foster a relationship with the other parent, (2) which parent is the primary caretaker, (3) where the child is currently living and for how long the child has lived there, (4) the results of any forensic evaluation, (5) and the wishes of the child as presented by the attorney for the child. See the article on Child Custody for more information.
If the parents cannot reach an agreement on relocation, the court will permit or deny a request to relocate based on the best interests of the child.
When there is a large disparity between the spouse's income and assets, the court may grant an award of counsel fees. See DRL 237, DRL 238, and the article "Lawyer and Expert Fees" for more information.
The court may allow one spouse to buy the other spouse out, it may order the home to be sold to a third party, or it may grant exclusive occupancy of the marital residence to one spouse.
If the court made an adverse decision, you have a right to appeal once the decision is in the form of an appealable paper. However, you can't appeal anything you agreed to.
An uncontested divorce is when both sides agree to getting a divorce and also agree on all other issues. When a divorce is uncontested, there is no requirement to appear in court, everything can be done on papers.
A contested divorce is when there is one or more issue in the divorce which cannot be resolved between the parties. When there is a disagreement, the Court will decide the unresolved issues.