New York Divorce Laws

If you live in New York and are considering filing for divorce, make sure you understand the laws that apply to the process first. This will help you determine if divorce makes the most financial sense for your family.

Who Can File for Divorce and On What Grounds

In order to file for divorce in New York, you must meet the state’s residency requirements, which means one of the following is true:

  • You were married in New York and have lived there for a continuous year prior to filing.
  • You have lived as a married couple in the state for a period of one continuous year prior to filing.
  • The cause of your divorce occurred in the state and one party has lived there for one year prior to filing.
  • The cause of your divorce occurred in the state and both are residents at the time of filing for divorce.

You also must have appropriate grounds to file for divorce in New York. The grounds acceptable in New York are as follows:

  • Cruel and inhumane treatment that endangers physical or mental well being of the plaintiff
  • Abandonment for a period of one or more years
  • Confinement in prison for a period of three or more consecutive years
  • Adultery
  • Living apart for a period of one or more years due to a decree or judgment of separation
  • Living apart for a period of one year pursuant to a written agreement of separation
  • Irretrievable breakdown of the marriage for a period of six months

Technically New York is not a no fault divorce state, but the “irretrievable breakdown” clause makes it fairly flexible.

If one of the spouses is a member of the military, you may be able to file for divorce in New York, provided you meet the residency requirements. Being stationed in the state counts as being a resident. You may want to use a military family law attorney to ensure that you follow all of the military-specific rules surrounding divorce.

Division of Property

New York follows the equitable distribution model when it comes to distributing marital property. This means it is distributed based on what is fair for both spouses, but this my not be what is equal. Whenever possible the courts encourage couples to come to their own agreements about division of property, but when this is impossible, they will make the determination based on the following factors:

  • Income and property of the parties at the time of the marriage and at the start of the divorce
  • Length of the marriage
  • Age and health of both parties
  • Needs of the custodial parent in regards to the family home
  • Loss of inheritance or pension as a result of the divorce
  • Any maintenance payments
  • Liquid nature of the property
  • Contribution made to the acquisition of the property, including the homemaker’s role
  • Future financial circumstances of each party
  • Wasteful dissipation of assets by a spouse
  • Tax consequences
  • The desire to keep business assets intact and free of interference from a spouse
  • Any other factors deemed necessary

Child Custody

When determining child custody, the courts will make a determination based on what they deem is in the child’s best interests. The laws are open as to the factors that will be used to determine what, exactly, is the child’s best interests in these cases.

Support

If the courts deem spousal support to be necessary, they will look at the following factors:

  • Income and property of the parties
  • Length of marriage
  • Health of each party
  • Present and future earning capacities
  • Ability of the supported party to become self-supported, and any training necessary for this
  • Presence of children
  • Tax consequences
  • Contributions of the homemaker to the career of the other party
  • Wasteful dissipation of marital property by either spouse
  • Any other factors deemed necessary

Child support is determined based on the Income Shares Model, which divides support costs between parents proportionally based on their incomes. Courts will also consider outside factors when determining the appropriate support amount.