Divorce – State Law Summary – New York

Notes:  This summary is not intended to be an all-inclusive summary of the laws of divorce in the State of New York, but does contain basic and other procedures.

Grounds for divorce
A divorce may be granted in the State of New York upon the following grounds:
1. Cruel and inhuman treatment;
2. Abandonment;
3. Imprisonment for 3 years or longer;
4. Adultery;
5. Living separate and apart for one year or longer under either a decree of separation or a separation agreement between the parties. N.Y. Dom. Rel. Law §170 Action for divorce

Residency requirements
New York has a one year residency requirement under the following circumstances:
1. The parties were married in the State of New York and either party is and has been a resident of New York for one continuous year immediately prior to filing for divorce;
2. The parties resided in the State of New York as man and wife and either party is and has been a resident of New York for one continuous year immediately prior to filing for divorce;
3. The cause of the divorce occurred in the State of New York and either party is and has been a resident of the State of New York for one continuous year immediately prior to filing for divorce;
4. The cause of the divorce occurred in the State of New York and both parties are residents thereof.

In all other instances, either party must have resided in the State of New York for two contiuous years immediately prior to the commencement of the action.

Name of court and title of action/parties
An action for divorce filed in the State of New York is filed in the Supreme Court.  The title of the action initiating the divorce action is a Complaint for Divorce, while the title of the action granting the divorce is referred to as the Judgement of Divorce.  The party who files the action for divorce is the Plaintiff, while the other party to the action is referred to as the Defendant.

Legal separation
A judgement of legal separation may be obtained in the State of New York on the following grounds:
1. Cruel and inhuman treatment;
2. Abandonment;
3. Neglect or refusal to provide support;
4. Adultery, or;
5. Imprisonment for three years or longer. N.Y. Dom. Rel. Law § 200

Simplified divorce procedure
New York permits a summary divorce to be granted if the parties have lived separate and apart for a period of one year pursuant to a written agreement of separation.  The plaintiff must submit proof of substantial compliance with the terms and conditions of the separation agreement.

Alimony
Either party to a divorce action may be ordered to pay alimony to the other spouse, without regard to marital fault, after consideration of the following factors:
1. The income and property of the parties;
2. The duration of the marriage;
3. The present and future earning capacity of both parties;
4. The ability of the party seeking alimony to become self-sufficient and the length of time and training necessary to become so;
5. Reduced or lost lifetime earning capacity as a result of having foregone or delayed education, training, employment or career opportunities during the marriage;
6. Children of the marriage in the respective homes of the parties;
7. Tax consequences;
8. Any other factor the court deems relevant.

Distribution of property
Marital property shall be distributed equitably between the parties after due consideration of the following factors:
1. The income and property of each party;
2. The duration of the marriage and the age and health of the parties;
3. The need of the custodial parent to occupy the marital home;
4. The loss of inheritance and pension rights upon divorce;
5. Any award of alimony;
6. Any contributions to the acquisition of marital property;
7. The liquid or non-liquid character of marital assets;
8. The probable future financial circumstances of the parties;
9. Tax consequences;
10. Any other factor the court deems relevant.

Child Custody
The issue of custody of any minor children of the marriage will be decided by the court according to the best interests of the child.  There exists no presumption in favor of either parent regarding custody of the children.

Child support
New York has established child support guidelines which are presumed to be the correct amount of support due, absent a showing that application of the guidelines would be unjust or innappropriate.  Some of the factors the court will consider in determining the correct amount of support to be awarded include:
1. The financial resources of the custodial and non-custodial parent, and those of the child;
2. The physical and emotional health of the child and the child’s special needs and aptitudes;
3. The standard of living the child would have enjoyed had the marriage not been dissolved;
4. Tax consequences;
5. The non-monetary contributions of the parents;
6. The educational needs of either parent;
7. A comparison of gross incomes of the parents;
8. Any other relevant factor.

Name change
Upon request, the court will restore a party to the use of her former or maiden name.