Residency Requirements

New York has multiple residency categories that a party can rely upon to bring an action for divorce, separation, annulment or nullity of a void marriage thereby allowing the New York courts to have jurisdiction to decide the matter. These requirements are as follows:

1. Parties were married in New York and either party is a resident of New York when the action was commenced and has been a resident for a continuous one (1) year period immediately prior to the commencement of the action. OR
2. Parties have lived in New York as husband and wife and either party is a resident of New York when the action was commenced and has been a resident for a continuous one (1) year period immediately prior to the commencement of the action. OR
3. The cause of action happened in New York and either party has been a resident of New York for a continuous one (1) year period immediately prior to the commencement of the action. OR
4. The cause of action happened in New York and both parties are residents of New York at the time of the commencement of the action. OR
5. Either party has been a resident of New York for a continuous period of at least two (2) years immediately prior to the commencement of the action.

Grounds for Divorce

There are multiple grounds that can be alleged in New York in a divorce action. However, in October of 2010 New York State became the last state to finally enact a No-Fault divorce ground. Therefore, it is likely that most, if not all, future divorce actions will be brought under this ground, although all of the other remaining grounds are still available. The grounds for divorce in New York are:

(1) Cruel & inhuman treatment;
(2) the abandonment of the Plaintiff by the Defendant for a period of one or more years;
(3) the confinement of the Defendant in prison for a period of three or more consecutive years after the marriage;
(4) the commission of adultery voluntarily performed by the Defendant with a person other than the Plaintiff after the marriage;
(5) living apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment;
(6) living separate and apart pursuant to a written agreement of separation signed by the parties for a period of one or more years after the signing of the agreement;
(7) the relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath.

Paragraph 7 above is the No-Fault ground for divorce in New York and what this essentially means is a divorce will be granted on that ground only after the parties or the court has resolved ALL issues in the marriage. This is different from all of the other grounds for divorce in New York which requires that the party prove the ground for divorce before a final determination will be made on all of the other economic and custody issues of the marriage.

Division of Property

New York does what is known as an equitable distribution of the marital property of the parties in a divorce action. Marital property is property acquired during the course of the marriage (date you were married through the date the action was commenced). All other property acquired prior to the marriage or after the marriage is generally going to be considered separate property, unless it can be shown that the property has been what is referred to as “transmuted” from separate property to marital property. This can happen when the party who owns the separate property commingles it so much with marital property that it essentially becomes marital property, i.e. the other spouse having responsibility to manage the property. This is a complex area and there are many ways in which separate property can become marital property.

With respect to the distribution of marital property, New York court’s generally try to divide the marital property almost evenly between the parties, although it does not have to be exactly equal. The court has discretion to award one party a higher share of the marital property than the other party receives. When making an equitable distribution determination of the marital property, the court will consider the following factors:

(a) the income and property of each party at the time of marriage, and at the time of the commencement of the action;
(b) the duration of the marriage and the age and health of both parties;
(c) the need of a custodial parent to occupy or own the marital residence and to use or own its household effects;
(d) the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution;
(e) the loss of health insurance benefits upon dissolution of the marriage;
(f) any award of maintenance under subdivision six of this part;
(g) any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
(h) the liquid or non-liquid character of all marital property;
(i) the probable future financial circumstances of each party;
(j) 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;
(k) the tax consequences to each party;
(l) the wasteful dissipation of assets by either spouse;
(m) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
(n) any other factor which the court shall expressly find to be just and proper.

Spousal Support

Spousal support (also referred to as alimony and maintenance) is determined based upon the needs of the party seeking such support from the other party. The factors that the court is to consider when making a determination for spousal support are:

(1) any income or assets of the parties including the property award;
(2) the length of the marriage and the age and health of the parties;
(3) the earning potential of both parties;
(4) If and how long it would take the party seeking support to become self-supporting;
(5) reduced or lost lifetime earning capacity;
(6) the presence of children of the marriage in the respective homes of the parties;
(7) the tax ramifications;
(8) 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;
(9) any dissipation of assets;
(10) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; and
(11) any other factor which the court shall expressly find to be just and proper.

In October 2010, New York passed legislation that sets forth a framework for the court to use when determining the request by the lesser income earning spouse for temporary maintenance. Absent a written agreement by the parties that address the issue of spousal support, the court will make an award of temporary maintenance to the lower income earning spouse based upon application of the guideline calculation on the first $500,000.00 of income. This maintenance award is a presumptive award (meaning it will be granted) unless the court determines the award to be unjust or inappropriate, in which case the court can adjust the presumptive award accordingly based upon consideration of the following factors:

(a) the standard of living of the parties established during the marriage;
(b) the age and health of the parties;
(c) the earning capacity of the parties;
(d) the need of one party to incur education or training expenses;
(e) the wasteful dissipation of marital property;
(f) the transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
(g) the existence and duration of a pre-marital joint household or a pre-divorce separate household;
(h) acts by one party against another that have inhibited or continue to inhibit a party’s earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law;
(i) the availability and cost of medical insurance for the parties;
(j) the care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party’s earning capacity or ability to obtain meaningful employment;
(k) the inability of one party to obtain meaningful employment due to age or absence from the workforce;
(l) the need to pay for exceptional additional expenses for the child or children, including, but not limited to, schooling, day care and medical treatment;
(m) the tax consequences to each party;
(n) marital property subject to distribution pursuant to subdivision five of this part;
(o) the reduced or lost earning capacity of the party seeking temporary maintenance as a result of having foregone or delayed education, training, employment or career opportunities during the marriage;
(p) the contributions and services of the party seeking temporary maintenance as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party; and
(q) any other factor which the court shall expressly find to be just and proper.

Child Custody

Custody determinations in New York are based upon the best interests of the child. This is the standard the court must apply when making its decision. Typically, the parties reach a resolution on a custodial and parenting time arrangement prior to a court making a determination. If this resolution is reached in the context of a child custody proceeding, the resolution is placed upon the record and is approved by the court. There are several forms of custody that exist:

(1) sole legal (where one parent makes all of the major decisions involving the child(ren) on his/her own without the need to consult with the other parent),
(2) joint legal custody (where both parents are to consult and agree on all major decisions involving the child(ren), i.e. school, religion, etc.),
(3) joint/shared physical (where the parents equally or almost equally share physical custody of the child(ren),
(4) primary physical (where one parent will have more than 50% of the physical custodial time with the child(ren).

Custody matters are usually the most contentious part of any family court and divorce proceeding.

Child Support

Child support is the financial support that the non-custodial parent must pay to the custodial parent for the care and support of the parties child(ren). Therefore, the custody determination will have a direct affect on what the child support arrangement will be. The non-custodial parent is the parent who has less than 50% of the physical custodial time with the child(ren). However, in cases where the physical time each parent has with the child(ren) is exactly 50%, then the non-custodial parent is the parent who earns less income.

In New York, there is a standard application for the amount of child support to be paid by the non-custodial parent. This is known as the Child Support Standards Act. The amount of child support to be paid by the non-custodial parent is determined by multiplying the combined parental gross income by the specified percentage based upon the number of children who are entitled to receive support. In New York, child support is to be paid until the child(ren) reach(es) the age of twenty-one (21). The percentage to be applied is: (1) 17% for 1 child; (2) 25% for 2 children; (3) 29% for 3 children; (4) 31% for 4 children, and (5) no less than 35% for 5 or more children.

This non-custodial parent then pays his prorated share of that amount, which is determined by figuring each party’s prorated share of the combined parental income. This prorated share (percentage) is also what is used to determine each party’s obligation towards such child related expenses as day care costs, and health insurance costs. The court has the ability to modify the non-custodial parents prorated share of the child support obligation if the court determines that share to be unjust or inappropriate.