How to file a divorce in New York

Whether you live in New York or elsewhere, divorce for any married couple will accomplish two things: (1) severing the marital relationship, and (2) dividing assets and debts. If one of them will be unable to be self-supporting after the divorce, the issue of alimony may arise. If there are minor children, they will also need to resolve issues of child custody and support.

Residency and where to file

To file for divorce in New York, one of the following situations must exist:

• both parties are New York residents, and the cause of the divorce arose in the state,
• one party is a resident for at least one year, and the cause of the divorce arose in the state,
• one party is a resident for at least one year, and the parties were married in the state,
• one party is a resident for at least one year, and the parties have resided in the state as husband and wife, or
• either party has been a resident of New York for at least two years.

You may file in the Supreme Court in the county where either party resides.

Procedures

The simplest procedure is an uncontested divorce, where you and your spouse reach an agreement. You begin by preparing a Complaint for Divorce, along with various supporting documents, one of which will be a marital settlement agreement outlining the division of assets, and your agreement regarding any children. These documents are filed with the court, and copies of them are provided to your spouse. You will attend a court hearing, at which time the judge will make sure that all of your paperwork is in order, perhaps ask you a few questions, and enter your Judgment of Divorce.   

Grounds for divorce

Grounds for divorce are legally recognized reasons to get a divorce. New York has what is commonly called no-fault grounds, and several traditional fault-based grounds. To get a no-fault divorce in New York, you need to state in the Complaint for Divorce one of the following:

• “The parties have lived separate and apart for at least one year under a written agreement of separation, which is signed by the parties and notarized.” This requires proof that the plaintiff has substantially performed the terms and conditions of the agreement. The agreement, or a memorandum of it, must be recorded with the county clerk’s office.
• “The parties have lived separate and apart for a period of at least one year after the granting of a decree or judgment of separation.” This requires proof that the plaintiff has substantially performed all the terms and conditions of the decree or judgment.

The fault-based grounds for divorce are cruel and inhuman treatment so as to endanger the physical or mental well being of the plaintiff and make cohabitation unsafe or improper, abandonment for at least one year, imprisonment for at least three years, and adultery. However, in most cases, there is no reason to use any of these, as they add complexity by requiring proof.

Property division

A divorce involves dividing property and debts between you and your spouse. Generally, each party will keep separate property, which is property:

• acquired before marriage, or by inheritance or non-spousal gift
• which is compensation for personal injuries
• acquired in exchange for, or the increase in value of, separate property, except to the extent the appreciation is due in part to the contributions or efforts of the other party
• described as separate property by written agreement of the parties

All other property is marital property. Absent an agreement, the judge is required to divide the marital property “equitably,” after considering the following factors:

• each party’s income and property at the time of marriage, and at the time of filing
• the duration of the marriage, each party’s age and health
• the need for a custodial parent to occupy or own the marital residence, and to use or own its household effects
• the loss of inheritance and pension rights upon dissolution of the marriage
• the loss of health insurance benefits upon dissolution of the marriage
• any award of maintenance (alimony)
• any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of marital property by the party not having title, including services as a spouse, parent, wage earner, and homemaker, and to the career of the other party
• the liquid or non-liquid character of all marital property
• each party’s probable future financial circumstances
• the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation, or profession; and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party
• the tax consequences to each party
• the wasteful dissipation of assets by either spouse
• any transfer or encumbrance in contemplation of divorce, without fair consideration
• any other factor the court finds to be just and proper

Alimony in New York

Alimony is referred to as maintenance in New York. Absent an agreement of the parties, the court may award alimony after considering: (1) the standard of living established during the marriage, (2) whether the party seeking maintenance lacks sufficient property and income to provide for his or her reasonable needs, (3) whether the other party has sufficient property or income to pay maintenance, and (4) “the circumstances of the case and of the respective parties.”

In determining the amount and duration of maintenance the judge must consider:

• each party’s income and property, including the marital property division
• the duration of the marriage, and each party’s age and health,
• each party’s present and future earning capacity
• the ability of, and period of time and training needed for, the party seeking maintenance to become self-supporting
• any lost earning capacity of the party seeking maintenance due to having foregone or delayed education, employment, or career opportunities during marriage
• the presence of children of the marriage in the respective homes of the parties
• the tax consequences to each party
• any contributions and services of the party seeking maintenance as a spouse, parent, wage earner, and homemaker, and to the career or career potential of the other party,
• any wasteful dissipation of marital property by either spouse
• any transfer or encumbrance in contemplation of divorce without fair consideration
• any loss of health insurance benefits upon dissolution of the marriage; and
• any other factor the court finds to be just and proper

Child custody in New York

If you and your spouse have any minor children, there will have to be a custody determination. This basically comes down to figuring out how the children’s time will be divided between the parents, and how decisions will be made. If you and your spouse can reach an agreement on custody, it will be accepted by the judge unless it is determined not to be in the child’s best interest. If you cannot reach a custody agreement, the judge will decide the issue. Unlike many states, New York child custody law does not provide a list of factors for the judge to consider. New York law allows the judge to enter a custody order as “justice requires, having regard to the circumstances of the case and of the respective parties and to the best interests of the child.”

Child support in New York

Child support is determined by reference to the New York Child Support Standards, which may be found at the New York state government website.

Name change

The wife’s maiden or former name may be restored.

LegalZoom’s online divorce service is an inexpensive way to file for divorce if you and your spouse agree on most major issues. Otherwise, you can talk to an attorney for advice or help filing for divorce through the LegalZoom personal legal plan.