Ending a marriage can be one of the most difficult and stressful experiences of a person's life. In addition to an emotional and financial partnership, marriage is also a legal partnership, which means a divorcing couple must meet specific legal requirements to end their marriage in New York.
Legal Separation in New York
Married couples who are having problems, but who aren't ready to divorce, may consider a separation period. This can give a couple the space they need to work on a troubled marriage, and they are free to get back together at any time.
During a legal separation, the two spouses live apart, and they have a separation agreement that defines their rights and responsibilities. The separation agreement is a written document, signed by both spouses, that describes things like the division of property, financial responsibilities (such as debts and bills), spousal and child support, and custody and parenting arrangements. It's important to have a formal written document, rather than an informal agreement between spouses, in case there is confusion or disagreement later about exactly what the spouses agree to. It's no longer enough to say "we know what we agree to," because maybe the spouses are not "agreeing" to the same things.
If the couple can't resolve their marital problems, separation can also be grounds for divorce (see below), if the separation agreement meets all of New York's legal requirements. That's another reason for a formal written agreement instead of an informal agreement. Because spouses have already agreed on the issues regarding finances and parenting, the divorce process is typically easier after a legal separation.
New York Divorce Laws
To get divorced in New York, a divorcing couple must meet New York's residency requirement and have a legal reason (called grounds) for divorce.
Divorce cases are handled by the Supreme Court in New York. A marriage legally ends in divorce once a judge signs a Judgment of Divorce. Before a judge will do so, the couple's financial and parenting issues must be resolved. Ideally, these issues can be worked out between the divorcing spouses with the assistance of their attorneys, and without the intervention of the courts.
In an uncontested divorce, both spouses want to get divorced and they have reached agreement on financial and parenting issues. A contested divorce occurs when one party doesn't want to get a divorce or the spouses disagree about financial or parenting issues.
Grounds for Divorce
The most common grounds for divorce in New York are:
- Irretrievable breakdown in the relationship. This is often called a "no-fault" divorce. It occurs when a marriage has been irretrievably "broken" for a period of six months or more. This is the most common grounds for divorce because only one spouse is required to allege irretrievable breakdown, even if the other spouse disagrees.
- Cruel and inhuman treatment. This includes physical, verbal or emotional abuse within the last five years that makes it unsafe for one spouse to stay in the marriage.
- Abandonment. If one spouse left the other for a period of a year or more, this can be a ground for divorce.
- Imprisonment. If a person's spouse began a prison sentence after the marriage started and he or she was in prison for three or more years in a row, this can be a ground for divorce.
- Adultery. This can be a difficult ground to prove, as the accusing spouse's testimony alone is not sufficient to prove adultery.
- Separation Agreement. If the spouses sign and file a valid separation agreement and live apart for one year, this can be a ground for a divorce.
Division of Property
There are two types of property that are considered in a divorce proceeding:
- Marital property includes all property bought by either spouse during the marriage (regardless of whose name the property is in, in most cases). This includes things like the couple's house, car and the money in their bank accounts. It can also include pensions and retirement plans.
- Separate property is property that a spouse owned before the marriage. Inheritances, personal injury payments, or gifts (from someone besides their spouse) that a spouse receives during the marriage are also considered separate property.
If the divorcing couple can't agree regarding the division of property, their property will be divided equitably by the court. Equitably does not always mean equally. New York's Equitable Distribution Law requires that a judge divides a couple's property as fairly as possible. Marital property is divided equitably by the court. Each spouse gets to keep their separate property.
Child Custody and Child Support
There are two types of custody: physical custody and legal custody. Physical custody indicates with whom a child resides, while legal custody is a parent's right to control his or her child's upbringing and make important decisions regarding things like the child's education, religious training, and medical treatment.Parents can have shared physical custody, meaning the child spends equal or nearly equally time at each parent's home. Or, one parent may have primary physical custody, meaning the child spends the majority of his or her time at one parent's home. In that case, the non-primary parent will have a specific parenting schedule. Both legal custody and physical custody (including a parenting schedule) are determined at the time of divorce or legal separation.
Child support is paid by a non-custodial parent to help cover things like the child's clothing, food, and housing. A parent may also pay for a portion of the child's educational expenses, medical expenses, or the custodial parent's child care expenses. The amount of child support may be in accordance with the Child Support Standards Act, which provides a standard formula for calculations. Or, depending upon the many factors distinct to each case, the parents, or the Court, may deviate from the formula and a different amount is paid.
Divorcing parents may reach an agreement regarding custody and child support. If they cannot agree, these matters may need to be decided by a judge. A judge will try to determine what would be in the best interests of the child when making child custody decisions. When decided by a judge, the basic child support obligation is often calculated based on the Child Support Standards Act, which results in the "presumptively correct amount."
Spousal Maintenance (Alimony)
Spousal maintenance refers to payments that one ex-spouse may be required to make to the other after a divorce. A spouse may also be required to pay the other temporary maintenance during a contested divorce while the divorce is proceeding.
New York enacted guidelines for spousal maintenance in 2016. If the divorcing couple can't agree on spousal maintenance, the court uses these guidelines to determine how much should be paid, in any.
The spousal maintenance guidelines consider a variety of factors, such as how much each spouse makes, the duration of the marriage and whether one spouse is paying child support. The guidelines also take into consideration the spouses' age and health, earning capacity, whether one spouse had a history of limited participation in the workforce (for example, staying home to raise children), the standard of living the couple had during the marriage, and contributions a spouse made to the other spouse's career.
Parents who were never married must often decide issues of child custody and support outside the context of a divorce or legal separation. The Family Court in the county where you reside may assist parents with these important decisions. The Family Courts use the same "best interests of the child" and Child Support Standards Act formula to guide them when determining custody and support.
Are You Considering a Divorce?
At Frost & Kavanaugh, we believe that you are the best person to decide what is right for you and your family, not a lawyer or a judge. We are proud to say that over 95% of our family law clients are able to settle their divorce cases without having to go to trial. We offer reasonable rates and will quote you a retainer fee which reflects the expected work to be performed, depending upon the complexity of each case. Our retainer fee for divorce generally begins at $3,500.00, and legal separation or Family Court matters at $2,500.00. Each client's case is unique, and the amount of work required is mostly dependent upon the client's needs, choices and stated goals.
If you are considering hiring a family law attorney, contact Frost & Kavanaugh to schedule a consultation. We charge a modest $250.00 consultation fee for a consultation appointment, and the appointment generally takes between 1-2 hours. we discuss all information and details of your case with you at this consultation appointment. If you choose to retain us, we deduct the $250.00 from the retainer amount we quote you.