Understanding New York State Divorce Laws: What You Need to Know

Navigating the complexities of divorce can be a daunting experience, especially when considering the various laws and regulations that govern the process in New York State. For anyone going through a divorce or contemplating the possibility, understanding these laws is crucial for making informed decisions and protecting one’s rights. New York has specific statutes that address the grounds for divorce, division of assets, spousal support, child custody, and child support. These laws are designed to ensure that the divorce process is fair and equitable, but they can also be complicated and require careful navigation. In this comprehensive guide, we will explore the key aspects of New York State divorce laws, providing you with the essential information you need to understand the process and what to expect.

Richard H. Cole
Partner

Thomas F. Hewner
Partner

Donna L. Haslinger
Partner

Vivian P. Roche'
Partner

Keith R. Rosso
Attorney

Tasha D. Frazie
Attorney

Grounds for Divorce in New York State

New York recognizes both fault and no-fault grounds for divorce. The introduction of no-fault divorce in 2010 marked a significant change in how divorces are handled in the state, allowing couples to dissolve their marriage without the need to prove wrongdoing by either party. Under the no-fault ground, a marriage can be dissolved if there has been an irretrievable breakdown of the relationship for at least six months. This means that one party simply has to state that the marriage has broken down beyond repair, and the court will grant the divorce.

In addition to no-fault divorce, New York still allows for fault-based divorces, where one party must prove that the other party’s misconduct led to the breakdown of the marriage. The grounds for fault-based divorce in New York include cruel and inhuman treatment, abandonment for a continuous period of one year or more, imprisonment for three years or more, and adultery. While proving fault can sometimes lead to a more favorable settlement, it often requires additional time, expense, and emotional strain, making no-fault divorce the preferred option for many couples.

Division of Marital Assets

One of the most challenging aspects of any divorce is the division of marital assets. New York is an equitable distribution state, meaning that marital property is divided fairly, but not necessarily equally, between the spouses. Marital property includes all assets and debts acquired during the marriage, regardless of whose name is on the title. This can include real estate, bank accounts, retirement accounts, businesses, vehicles, and personal property.

The court considers several factors when determining the equitable distribution of marital assets. These factors include the length of the marriage, the income and property of each spouse at the time of marriage and at the time of divorce, the age and health of each spouse, the need of a custodial parent to occupy the marital residence, and the contributions of each spouse to the marriage, including homemaking and child-rearing. The court also considers any wasteful dissipation of assets by either spouse, as well as the tax consequences of the distribution.

Separate property, which is not subject to division, includes assets acquired before the marriage, inheritances, gifts from third parties, and personal injury awards. However, if separate property is commingled with marital property, it may lose its separate character and become subject to division. For example, if one spouse uses an inheritance to purchase a marital home, that inheritance may be considered marital property.

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Spousal Support and Maintenance

In New York, spousal support, also known as maintenance or alimony, is financial support paid by one spouse to the other after a divorce. The purpose of spousal support is to help the lower-earning spouse maintain a standard of living similar to what was enjoyed during the marriage. Spousal support can be awarded on a temporary basis during the divorce proceedings or on a permanent basis after the divorce is finalized.

The court considers several factors when determining the amount and duration of spousal support. These factors include the length of the marriage, the age and health of both parties, the present and future earning capacity of both parties, the need of one party to incur education or training expenses, the standard of living established during the marriage, the equitable distribution of marital property, and the contributions of each party to the marriage. The court also considers any acts by one spouse that have inhibited or continue to inhibit the earning capacity of the other spouse.

Temporary spousal support is typically awarded during the divorce proceedings to help the lower-earning spouse meet their financial needs. Permanent spousal support, on the other hand, is awarded after the divorce is finalized and can last for a set period of time or indefinitely, depending on the circumstances of the case. The court may also award rehabilitative spousal support, which is intended to provide financial assistance to the lower-earning spouse while they obtain education or training to become self-supporting.

Child Custody and Visitation

Child custody is often one of the most contentious issues in a divorce, as both parents typically want to maintain a strong relationship with their children. In New York, the court determines child custody based on the best interests of the child. This standard considers several factors, including the child’s age, health, and emotional ties to each parent, the parents’ ability to provide for the child’s needs, the child’s wishes if they are of sufficient age and maturity, and any history of domestic violence or substance abuse.

There are two types of custody in New York: legal custody and physical custody. Legal custody refers to the right to make important decisions about the child’s upbringing, such as education, healthcare, and religion. Physical custody refers to where the child lives and the day-to-day care they receive. The court can award joint legal custody, where both parents share decision-making responsibilities, or sole legal custody, where only one parent has the authority to make decisions. Similarly, physical custody can be awarded to one parent, with the other parent receiving visitation rights, or it can be shared between both parents.

Visitation, also known as parenting time, is the time that the non-custodial parent spends with the child. The court generally encourages frequent and meaningful contact between the child and both parents, as long as it is in the child’s best interests. Visitation schedules can vary widely, depending on the parents’ work schedules, the child’s school schedule, and other factors. In some cases, the court may order supervised visitation if there are concerns about the child’s safety or well-being.

Child Support

In New York, both parents are responsible for providing financial support for their children after a divorce. Child support is intended to cover the child’s basic needs, including food, clothing, shelter, education, and healthcare. The non-custodial parent typically pays child support to the custodial parent, who is presumed to be contributing to the child’s expenses through direct care.

Child support in New York is calculated using a formula based on the combined income of both parents and the number of children. The court first determines the combined parental income and then applies a percentage to that income based on the number of children. For one child, the percentage is 17 percent; for two children, it is 25 percent; for three children, it is 29 percent; for four children, it is 31 percent; and for five or more children, it is at least 35 percent.

The court may also consider additional factors when calculating child support, such as the financial resources of each parent, the physical and emotional health of the child, the child’s educational needs, and the standard of living the child would have enjoyed if the marriage had not ended. The court can also order additional support for expenses such as childcare, medical expenses, and extracurricular activities.

Child support is typically paid until the child reaches the age of 21, unless the child is emancipated earlier by getting married, joining the military, or becoming financially independent. However, the court may order support to continue beyond the age of 21 in certain circumstances, such as if the child has special needs.

Modifications and Enforcement of Divorce Orders

Life circumstances can change after a divorce, and it may become necessary to modify the terms of the divorce agreement. In New York, either party can request a modification of child custody, visitation, child support, or spousal support if there has been a significant change in circumstances. This could include a change in income, a relocation, a change in the child’s needs, or a change in the health of either party.

To modify a divorce order, the requesting party must file a petition with the court and demonstrate that the change in circumstances warrants a modification. The court will then review the petition and determine whether the modification is in the best interests of the child or whether it is fair and reasonable under the circumstances.

Enforcing a divorce order is another important aspect of post-divorce life. If one party fails to comply with the terms of the divorce agreement, the other party can seek enforcement through the court. This could include enforcing child support payments, enforcing visitation schedules, or enforcing the division of property. The court has the authority to impose penalties on the non-compliant party, such as wage garnishment, fines, or even jail time, to ensure compliance with the divorce order.

Understanding New York State divorce laws is essential for anyone going through the process or considering a divorce. From the grounds for divorce to the division of assets, spousal support, child custody, and child support, these laws are designed to provide a fair and equitable resolution to the end of a marriage. However, navigating these laws can be complex and challenging, requiring careful consideration of each aspect of the divorce. Whether you are facing a contested or uncontested divorce, having a comprehensive understanding of your rights and responsibilities is crucial for making informed decisions and achieving the best possible outcome for your situation.

If you are contemplating a divorce or are already involved in the process, the experienced attorneys at Cole, Sorrentino, Hurley, Hewner & Gambino, P.C. are here to help. We understand the emotional and financial challenges that come with divorce, and we are committed to providing you with the guidance and support you need to protect your rights and secure a fair resolution. Contact us today to schedule a consultation and learn more about how we can assist you during this difficult time.