New York Divorce Law

Residency Requirements

If only one spouse resides in New York at the time of filing the divorce, the residency requirement is 2 years. However, the requirement is reduced to 1 year if:        

• The spouses were married in New York and either spouse is still a resident.        
• They once resided in New York and either spouse is still a resident.        
• The grounds for divorce arose in New York. In addition, there is no residency time limit requirement if both of the spouses were residents of New York at the time of filing the divorce and the grounds for divorce arose in New York. The divorce may be filed for in a county where either spouse resides.

Legal Grounds for Divorce in New York

No Fault Divorce:

• Living separate and apart for 1 year under the terms of a separation agreement which is in writing and signed and notarized.
• Living separate and apart for 1 year under the terms of a judicial separation decree.

General or Fault Based Divorce:        

• Cruel and inhumane treatment of one spouse by the other that endangers the physical or mental well being of the spouse, making it unsafe or improper for the spouses to continue living together.        
• Abandonment for a period of one or more years.        
• Confinement of one spouse in prison for a period of three or more consecutive years after the marriage.        
• Adultery        
• The spouses have lived apart pursuant to a decree or judgment of separation for a period of one or more years after the decree or judgment was granted, and satisfactory proof has been submitted by the plaintiff that he/she has substantially performed all the terms and conditions of the decree or judgment.        
• The spouses have lived apart pursuant to either a written agreement of separation or a memorandum (with specific information), for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by the plaintiff that he/she has substantially performed all the terms and conditions of such agreement, which is filed in the office of the clerk of the county where either spouse lives.        
• The relationship between the spouses has broken down irretrievably for a period of at least six months.

Legal Separation in New York:

The grounds for legal separation (separation from bed and board) in New York are:

• Adultery
• Abandonment
• Imprisonment for 3 or more consecutive years.
• Neglect of and failure to provide support for a wife.
• Cruel and inhuman treatment.

If only 1 spouse resides in New York at the time of filing the legal separation, the residency requirement is 2 years. However, the requirement is reduced to 1 year if:

• The spouses were married in New York and either spouse is still a resident.
• They once resided in New York and either spouse is still a resident.
• The grounds for legal separation arose in New York.

In addition, there is no residency time limit requirement if both of the spouses were residents of New York at the time of filing the legal separation and the grounds for legal separation arose in New York.

Simplified/Special Divorce Procedures in New York:

A summary divorce may be granted in New York if:

• The spouses lived apart for 1 year according to the terms of a separation decree or a separation agreement and,
• Satisfactory proof is submitted to the court that the spouse seeking the divorce has substantially performed all the terms and conditions of the separation decree or separation agreement.

There are sample divorce forms contained in the statute (Forms 1 and 12 for no-fault grounds), including the language necessary to state specific grounds and residency requirements. In addition, New York requires a financial disclosure to be filed in every divorce action.

Divorce Mediation or Counseling Requirements in New York:

There are no legal provisions in New York for divorce mediation.

Alimony/Spousal Support in New York:

Either spouse may be awarded maintenance, without regard to marital fault, based on a consideration of the following factors:

• The income and property of the spouses, including any marital property divided as a result of the dissolution of marriage.
• Any transfer of property made in anticipation of divorce.
• The duration of the marriage.
• The wasteful dissipation of marital property.
• The contribution of each spouse to the marriage and the career of the other spouse, including services rendered in homemaking, childcare, education, and career-building of the other spouse.
• The tax consequences to each spouse.
• Any custodial and child support responsibilities.
• The ability of the spouse seeking support to become self-supporting and the time and training necessary.
• Any reduced lifetime earning capacity as the result of having foregone or delayed education, training, employment, or career opportunities during the marriage.
• Whether the spouse from whom maintenance is sought has sufficient property and income to provide maintenance for the other spouse.
• The age and health of both spouses.
• The present and future earning capacities of both spouses.
• Any other factor the court deems just and equitable.

Child Custody in New York:

Joint or sole child custody is to be determined according to the best interests of the child. Neither parent is entitled to a preference. The court reviews the following factors when making decisions regarding custody and visitation:        

• The effect of a separation of siblings.        
• The wishes of the child, if the child is old enough.        
• The length of time the present custody arrangement has been in effect.        
• Abduction or abandonment of the child or other defiance of legal process by either of the parents.        
• The relative stability of each parent.        
• The care and affection shown to the child by his/her parents.        
• The atmosphere in the homes.       
• The ability and availability of the parents.        
• The morality of the parents.        
• A parent’s ability to personally devote time to the child and his/her needs.        
• The prospective educational probabilities.        
• The possible effect of a custodial change on the child.        
• The existence of domestic violence against one of the parents, or a family or household member.        
• The financial standing of the parents.        
• The parents’ past conduct.

Child Support in New York:

Health insurance coverage may be ordered to be provided. Marital misconduct of either parent is not to be considered. There are specific Child Support Guidelines in the statute and which are presumed to be correct, unless there is a showing that the amount of support would be unjust or inappropriate. The factors to be considered are:

• The financial resources of the child and the parents.
• The standard of living the child would have enjoyed if the marriage had not been dissolved.
• The physical and emotional health of the child and any special needs or aptitudes of the child.
• The financial resources, needs, and obligations of both the noncustodial and the custodial parent.
• The tax consequences to each parent.
• The non-monetary contributions that the parents will make towards the care and well-being of the child.
• The educational needs of either parent.
• Whether 1 parent’s income is substantially less than the other parent’s.
• The needs of other children of the non-custodial parent.
• If the child does not receive public aid, any extraordinary expenses required for the non-custodial parent to exercise visitation rights.
• Any other relevant factors.

Property Distribution in New York:

New York is an “equitable distribution” state. Separate property, including property acquired before a marriage and any gifts or inheritances whenever acquired, is to remain with the spouse who owns it. Separate property also includes any increase in value or property acquired in exchange for separate property. Marital property acquired during the marriage will be equitably divided between the spouses, based on the following factors:        

• The income and property of each party at the time of the marriage, and at the time of the commencement of the action.        
• The duration of the marriage and the age and health of both parties.       
• The need of a custodial parent to occupy or own the marital residence and to use or own its household effects.        
• The loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution.        
• Any award of maintenance.        
• 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.        
• The liquid or non-liquid character of all marital property.        
• The probable future financial circumstances of each party.       
• 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.        
• The tax consequence to each party.        
• The wasteful dissipation of assets by either spouse.        
• Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration.        
• Any other factor which the court shall expressly find to be just and proper. 

Marital fault may be considered. Financial disclosure of assets and income are mandatory.

Disclaimer: The divorce law information provided is for informational purposes only not for legal advice purposes. This information is general in nature. Each jurisdiction has specific code and court procedures. A local divorce attorney is your best source for how divorce is treated in your jurisdiction. Before making any legal decisions we encourage you to consult with a local attorney…do not make decisions based on general state divorce law.