Divorce – State FAQ – New York
Residency requirements, venue and procedures
Q: How long must I have lived in New York prior to filing for divorce in a New York court?
A: New York’s residency requirements are detailed. They are discussed in the divorce information section of the New York Divorce Main Page.
Q: What are the terms used to identify the parties in a divorce proceeding?
A: The party filing the action is called the Plaintiff, while the other party to the divorce is referred to as the Defendant.
Q: What is “venue,” and what is the proper venue for a divorce case?
A: “Venue” refers to which type of court and in what locality the case is filed. In New York, proper venue for the divorce action is the Supreme Court. The action should be filed in the county where either party resides.
Q: What is the title of the document initiating the action for divorce? The order granting the divorce?
A: The title of the document initiating the divorce proceeding is a Complaint for Divorce, while the title of the order granting the divorce is referred to as the Judgment of Divorce.
Grounds for divorce
Q: What is meant by “grounds for divorce”?
A: A “ground” for divorce is a “reason” for divorce. A set of judicially recognized reasons for divorce exist in New York. You must use one or more of these reasons to justify your divorce.
Q: What are the recognized grounds for divorce in New York?
A: A divorce may be granted in the State of New York upon the following grounds:
1. Cruel and inhuman treatment;
3. Imprisonment for 3 years or longer;
4. Adultery; and,
5. Living separate and apart for one year or longer under either a decree of separation or a separation agreement between the parties.
Q: Does New York law provide for a simplified divorce procedure?
A: Yes. 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.
Q: What does the term “spousal support” (or, “alimony”) mean?
A: “Spousal support” (sometimes called “alimony”) is money paid by one spouse to the other due to the payee spouse’s loss of the benefit of the payor spouse’s income due to the divorce.
Q: Is spousal support available while the divorce is pending in court, or only after the divorce has become final?
A: The court may order that one spouse support the other during the pendancy of the divorce action and/or after the divorce has become final. Support awarded pending the final decree of divorce is not to extend beyond the period of time necessary for the prosecution of the divorce action.
Q: What factors will the court consider when determining how much alimony to award to a party?
A: 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; and,
8. Any other factor the court deems relevant.
Distribution of property
Q: On what basis does the court decide how marital property is divided?
A: New York is a so-called “equitable distribution” state. This means that the division of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal. While the trial court’s discretion will not be disturbed on appeal without a showing of clear abuse, the court will consider the factors listed in the divorce information section of the New York Divorce Main Page.
Q: Is the “separate property” of one spouse subject to being divided up?
A: The question here is whether property “belonging to” one of the parties should be included in the marital estate for purposes of an equitable division. Generally, separate property acquired before the marriage or by gift or inheritance during the marriage may be excluded from the marital estate if neither the property nor its income has been used for the common benefit of the parties during their marriage.
Q: What if the parties occasionally use an item of separate property (for example, silver table utensils inherited by the wife) for the benefit of both parties?
A: The property may be subject to division. Where the parties regularly use property acquired by one party before marriage for the common benefit of the parties, it is more likely to be available for consideration in dividing property. The frequency of use may be considered by the court in making the decision.
Child custody and visitation
Q: What is child custody and visitation?
A: “Child custody” refers to which parent will have legal custody of the child(ren), i.e. with whom the child(ren) will live. “Visitation” is the topic of the non custodial parent’s ability to visit/spend time with the child(ren).
Q: If the parents cannot agree on child custody and visitation issues, on what basis will the court decide?
A: 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.
Q: Can grandparents be awarded visitation rights?
A: Yes. Both Grandparents and siblings may be awarded visitation rights if it is within the best interest of the child to do so.
Q: What is “child support”?
A: Child support is money paid by the non custodial parent to the custodial parent in order to meet the needs of the child(ren).
Q: To what should the parties look for guidance regarding amount of child support to be paid? What standard will the court use if the parties cannot agree?
A: 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 inappropriate. 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; and,
8. Any other relevant factor.