New York divorce law
Encyclopedia
On August 15, 2010, Governor David Paterson signed no fault divorce into law in New York state.
Until 2010, New York
recognized divorce
s only upon fault-based criteria, though the parties might agree to enter into a separation and have the separation agreement or judgment be the further basis for a divorce after one year. The parties might also agree to an uncontested divorce as long as one of the parties is willing to allege one of the fault based grounds or has the requisite separation agreement or judgment.
The state Senate on June 30 approved a No-Fault Divorce bill. The State Assembly also passed the No-Fault Divorce bill on Thursday, July 1, 2010, and the Governor has signed it into law.
for divorce in New York state (accusations
against the defendant
by the plaintiff
that are grounds for divorce
) were limited to:
Prior to 2010, all divorces, even by uncontested consent, had to be based on one of the six grounds stated above. Those grounds did not include accusations of bad conduct against the plaintiff unless such bad conduct rises to the level of cruel and inhuman treatment.
Even in a case of mutual consent, the parties might also disagree over child support
, custody
, alimony
, division of joint assets
or who is going to pay legal fees. These are known as "ancillary relief" (see below) that are requested by one or both of the parties.
The grounds in all cases must be specifically stated in the complaint, giving factual details, dates, and actual places of occurrence. Lack of proper content is not an affirmative defense; the plaintiff must prove the allegations even if uncontroverted; proof is made according to the general rules of evidence. Failure to state a cause of action will result in a judgment dismissing the complaint. Divorce may commence by means of filing and service of a Summons with Notice on the defendant. The defendant must then make an appearance and demand for the complaint by the plaintiff, or is at risk of having the plaintiff granted the divorce by default.
Once the case is filed and served the parties must request a Preliminary Conference within ninety days if the case is to be treated as a contested divorce. Such Preliminary Conference will be scheduled if one of the parties files a "Request for Judicial Intervention" (RJI) with required fee. At the Preliminary Conference the court may deal with interim issues, (i.e. temporary custody, child support, attorney fees or spousal support) and will schedule discovery between the parties that includes the valuation of assets and pensions to be divided between the parties.
Residing "continuously" in the state does not mean that the party can not have left the state during the period of residency nor does it mean that the party does not have another residence elsewhere outside New York.
is known as "maintenance" or "spousal support." Unlike child support, there is a set formula to calculate spousal support pendente lite (pending the litigation), but there is no post judgment formula. A grant of spousal support depends on the facts of the case, such as the disparity between the income of the parties, the duration of the marriage, the health of the parties, and the presence of very young children. In New York spousal support is rarely granted on a permanent basis, except in cases of physical or mental disability or when the parties are elderly (about 60 years old or older). Generally, it is granted for a set period of time so the other party can get back on their feet after the termination of the marriage. The length of time depends on the facts of the case as the judge sees fit to award.
in the final divorce decree.
Until 2010, New York
New York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
recognized divorce
Divorce
Divorce is the final termination of a marital union, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties...
s only upon fault-based criteria, though the parties might agree to enter into a separation and have the separation agreement or judgment be the further basis for a divorce after one year. The parties might also agree to an uncontested divorce as long as one of the parties is willing to allege one of the fault based grounds or has the requisite separation agreement or judgment.
The state Senate on June 30 approved a No-Fault Divorce bill. The State Assembly also passed the No-Fault Divorce bill on Thursday, July 1, 2010, and the Governor has signed it into law.
Grounds for divorce in New York (no-fault divorce can be done by mutual consent without grounds)
Until 2010, the causes of actionCause of action
In the law, a cause of action is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a plaintiff brings suit...
for divorce in New York state (accusations
against the defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
by the plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
that are grounds for divorce
Divorce
Divorce is the final termination of a marital union, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties...
) were limited to:
- Cruel and inhuman treatment (Domestic Relations Law §170.1)
- Abandonment for a continuous period of one year or more (DRL §170.2)
- Imprisonment for more than three years subsequent to the marriage (DRL §170.3)
- Adultery (DRL §170.4)
- Conversion of a separation judgment (DRL §170.5)
- Conversion of a written and acknowledged separation agreement after living separate and apart for more than one year (DRL §170.6)
Prior to 2010, all divorces, even by uncontested consent, had to be based on one of the six grounds stated above. Those grounds did not include accusations of bad conduct against the plaintiff unless such bad conduct rises to the level of cruel and inhuman treatment.
Irretrievable breakdown
Since 2010, a new ground has been added, effectively permitting no-fault divorce in New York state:- The relationship between husband and wife has broken down irretrievably for a period of at least six months (DRL §170.7)
Even in a case of mutual consent, the parties might also disagree over child support
Child support
In family law and public policy, child support is an ongoing, periodic payment made by a parent for the financial benefit of a child following the end of a marriage or other relationship...
, custody
Child custody
Child custody and guardianship are legal terms which are used to describe the legal and practical relationship between a parent and his or her child, such as the right of the parent to make decisions for the child, and the parent's duty to care for the child.Following ratification of the United...
, alimony
Alimony
Alimony is a U.S. term denoting a legal obligation to provide financial support to one's spouse from the other spouse after marital separation or from the ex-spouse upon divorce...
, division of joint assets
Division of property
Division of property, also known as equitable distribution, is a judicial division of property rights and obligations between spouses during divorce...
or who is going to pay legal fees. These are known as "ancillary relief" (see below) that are requested by one or both of the parties.
Cruel and inhuman treatment
Cruel and inhuman treatment must be behavior by the defendant that rises to the level such that it makes it improper for the plaintiff to continue to reside with the defendant as husband and wife. Allegations under this ground include allegations of domestic violence and repeated, extreme mental cruelty. In New York, the longer the duration of the marriage the more severe the level of cruelty must be in order to establish grounds under cruel and inhumane treatment.Abandonment
Abandonment may be actual or constructive. Actual abandonment is usually one spouse leaving the marital residence without the consent of the other spouse without intention to return. One spouse may also lock out the other spouse from the marital residence. Constructive abandonment is the refusal of "basic obligation arising from the marital contract," including a cessation of sexual relations; establishing such a prior constructive abandonment may render the spouse who leaves, or locks out the other, as the innocent spouse.Adultery
Adultery is difficult to prove as it requires corroborating evidence from a third party; thus a statement by the defendant that he or she had sexual relations with a third party is not legally admissible to permit the court to grant a divorce to the plaintiff. Furthermore, if the adultery was "condoned", ie. the cheated-on party knew about the extra-marital sexual relationship but continued to stay in a marital, conjugal relationship with their spouse, the adultery cannot serve as a cause for divorce.Contested Divorce
The grounds for divorce may be decided by a jury or by a judge, all other ancillary relief is considered equitable in nature and must be decided by the judge alone.The grounds in all cases must be specifically stated in the complaint, giving factual details, dates, and actual places of occurrence. Lack of proper content is not an affirmative defense; the plaintiff must prove the allegations even if uncontroverted; proof is made according to the general rules of evidence. Failure to state a cause of action will result in a judgment dismissing the complaint. Divorce may commence by means of filing and service of a Summons with Notice on the defendant. The defendant must then make an appearance and demand for the complaint by the plaintiff, or is at risk of having the plaintiff granted the divorce by default.
Once the case is filed and served the parties must request a Preliminary Conference within ninety days if the case is to be treated as a contested divorce. Such Preliminary Conference will be scheduled if one of the parties files a "Request for Judicial Intervention" (RJI) with required fee. At the Preliminary Conference the court may deal with interim issues, (i.e. temporary custody, child support, attorney fees or spousal support) and will schedule discovery between the parties that includes the valuation of assets and pensions to be divided between the parties.
Uncontested divorce
If all the issues are decided between the parties they may agree to submit the papers to the court for approval; this is known as an uncontested divorce. When the defendant is served but does not answer the legal pleadings the plaintiff may seek a default judgment by application to the court. If the divorce is started with a Summons with Notice then the grounds will either have to be proven by plaintiff's affidavit or by testimony at an inquest if the divorce is uncontested or to be granted by default. Uncontested divorces are also granted after the defendant appears and waives the right to answer the complaint. In these cases the defendant neither admits nor denies the plaintiff's allegations, it is up to the plaintiff to prove the allegations by testimony or affidavit in such a case.Residency requirements
For New York State Supreme Court to have jurisdiction over the parties (see DRL § 230) one of the following residency conditions must be satisfied:- The marriage ceremony was performed in New York and either spouse is a resident of the state at the time of the commencement of the action for divorce and resided in the state for a continuous period of one year immediately before the action began.
- The couple lived as husband and wife in New York and either spouse is a resident of the state at the time of the commencement of the action for divorce and resided in this state for a continuous period of one year immediately before the action began.
- The grounds for divorce occurred in New York and either spouse is a resident of the state at the time of the commencement of the action for divorce and resided in the state for a continuous period of one year immediately before the action began.
- The grounds for divorce occurred in New York and both spouses are New York residents at the time the action is commenced.
- If the parties were married outside of New York and have never lived together as husband and wife in the state and the grounds for divorce did not occur in New York then, one spouse must presently be a resident of New York and have resided continuously in the state for at least two years prior to filing an action for divorce.
Residing "continuously" in the state does not mean that the party can not have left the state during the period of residency nor does it mean that the party does not have another residence elsewhere outside New York.
Children
There are three keys issues when children are involved in a divorce or separation:- Child Custody - physical custody (where is the child's main residence) and legal custody (who makes decisions about the child) are the two elements of custody. Custody may be joint (shared by consent between the parties) or it may be sole as determined by agreement or by court order. Before custody is awarded the court usually undertakes various investigative steps to determine what is in the best interests of the child or children. If custody is not decided upon by consent (with the court and a court appointed law guardian representing the child) then a hearing takes place at which both parties present evidence to determine who should have custody in the best interests of the child (or children).
- Child Visitation - the parent who does not have physical custody has either: a) reasonable rights of visitation, b) a specified visitation schedule, or c) is limited to supervised visitation. Only in very rare cases may the non-custodial parent be denied visitation. Usually, this is for very specific reasons such as severe substance abuse, history of domestic violence or lack of interest in the child.
- Child Support - In New York the amount of child supportChild supportIn family law and public policy, child support is an ongoing, periodic payment made by a parent for the financial benefit of a child following the end of a marriage or other relationship...
paid by the non-custodial parent to the custodial parent is determined by the state Child Support Standards Act. Based on an adjusted gross incomeAdjusted Gross IncomeFor United States individual income tax, taxable income is adjusted gross income less allowances for personal exemptions and itemized deductions. Adjusted gross income is total gross income minus specific items laid out in the tax code...
formula the payments are 17% for one child and 25% for two children. There are limits that can be reached for individuals with very low income below the poverty level or very high income (statutorily above $80,000 but usually over $150,000) that will allow for deviations from these percentages. Over and above monthly or weekly child support, the court is also able to award a child support "add-on" for daycare costs if the custodial parent works, educational costs for the child (usually limited to college, not private or religious elementary or high school), and medical expenses, including the cost of medical insurance.
Property
Equitable distribution is the law in New York that determines the division of property at the end of a marriage. The court examines thirteen factors in determining the fair division of the property that was accumulated during the marriage and the debts of the parties. The courts have routinely held that equal distribution is the norm except in cases of egregious misconduct, or when dealing with businesses, professional licenses, and college & advanced degrees.Spousal Support
Today alimonyAlimony
Alimony is a U.S. term denoting a legal obligation to provide financial support to one's spouse from the other spouse after marital separation or from the ex-spouse upon divorce...
is known as "maintenance" or "spousal support." Unlike child support, there is a set formula to calculate spousal support pendente lite (pending the litigation), but there is no post judgment formula. A grant of spousal support depends on the facts of the case, such as the disparity between the income of the parties, the duration of the marriage, the health of the parties, and the presence of very young children. In New York spousal support is rarely granted on a permanent basis, except in cases of physical or mental disability or when the parties are elderly (about 60 years old or older). Generally, it is granted for a set period of time so the other party can get back on their feet after the termination of the marriage. The length of time depends on the facts of the case as the judge sees fit to award.
Legal Fees
When one party to a divorce is unable to afford an attorney that party is allowed to request the court to order the spouse with the greater income or assets to pay all or part of the other spouse's legal fees. These awards can be on a temporary basis at the beginning of the suit or at the end, as the judge sees fit in each case.Name Change
A spouse in a divorce often wants to use his or her birth name or a prior name if he or she has changed his or her name before the marriage sought to be dissolved and wants to keep that name after divorce. The court routinely grants the right to such a name changeName change
Name change generally refers to a legal act allowing a person to adopt a name different than their name at birth, marriage, or adoption. The procedures and ease of a name change depend on the jurisdiction. In general, common law jurisdictions have loose limitations on name changes while civil law...
in the final divorce decree.