Common Questions About Filing for Divorce in New York
How Do You Start a Divorce or Separation Action in New York?
An action for
separation or annulment is started by filing a Summons or Summons and Complaint in
the Supreme Court of the State of New York. Then, the Summons must be
served personally on your spouse and an affidavit of personal service
must be filed in court.
What Are the Grounds for a Divorce in New York?
In New York, most of the “grounds” are based on the “fault”
of one of the spouses. These are: abandonment for one or more years, cruel
and inhuman treatment, adultery, or imprisonment for three or more years.
The other grounds enable you to obtain a “no-fault” divorce.
Other grounds include: living apart for one year under a separation agreement
properly signed by the parties or under a separation judgment granted
by a Court. The spouse seeking the divorce must substantially comply with
the provisions of the separation judgment or separation agreement.
How Long Will it Take to Get Divorced in New York?
A simple uncontested divorce can be processed by the Supreme Court of the
State of New York within two to three months depending on the county where
you live. A complicated contested divorce, involving litigated custody,
support, valuation and property issues can take from one to several years.
Are Common-Law Marriages Valid in New York?
Common-law marriages are not valid marriages in New York State. However,
New York will recognize a common-law marriage that is valid in the state
where it was contracted.
Approximately a dozen states will permit common-law marriages to be entered
into within their borders. Each state has different requirements for proving
the validity of such marriages.
According to New York family law, the New York court will extend recognition
to out-of-state common-law marriages of New Yorkers. For example, it is
sufficient to show some minimum contacts with a common-law marriage state
in order to activate the law of another state. New York legal decisions
have liberally interpreted the requirements for a valid common-law marriage
in another state. New York cases have found that a common-law marriage
was created by the couple during a brief visit to a common-law marriage state.
The law applied by New York in determining the validity of an out-of-state
alleged common-law marriage is the law of the State where the marriage occurred.
What Is a Summons and Complaint?
A Summons notifies your spouse that a lawsuit has been started. The Complaint
is a legal document in a lawsuit for divorce, separation, or annulment.
It details the grounds for divorce, separation or annulment. It also states
other relief sought such as: maintenance, child custody and visitation,
child support, equitable distribution, declaration of separate property,
exclusive occupancy of the marital residence, life and health insurance,
attorney fees and expert fees to evaluate assets.
What Happens After the Summons Is Served?
Depending on whether or not a summons includes a complaint, your spouse
normally is given 20 days to serve a “notice of appearance”
on you or your divorce lawyer.
They will have 20 days to serve his or her answer to your complaint. The
answer may also contain counterclaims against you. You have 20 days to
reply to the counterclaims.
What Is Spousal Maintenance?
Formerly called “alimony,” spousal maintenance is also called
“spousal support.” Spousal maintenance involves payments made
from one ex-spouse to another.
What Is Permanent or Lifetime Support?
Lifetime support is maintenance for a period of time that is not fixed.
What Determines the Length and Amount of Maintenance?
New York State requires consideration of the following:
- Each spouse’s income
- Each spouse’s age
- The spouses’ property, including marital property divided at divorce
- The duration of the marriage
- The presence of children of the marriage
- The tax consequences to each spouse
- The wasteful dissipation of marital property by either spouse
- The earning capacity of each spouse, both present and future
- Whether or not spouse seeking support has the ability to eventually support
themselves, in addition to how long it may take and what training is required to do so
- The lost or reduced lifetime earning capacity of the maintenance-seeking
spouse as a result of having delayed or foregone training, education,
and employment during the marriage
- Any transfer of property or impediment made in the consideration of a divorce
or separation action without fair consideration
- Services and contributions of the support-seeking spouse as parent, wager
earner, and homemaker
- Any other factor which the Court deems relevant
Do I Have a Right to See My Spouse’s Financial Records?
In New York, both spouses have the right to complete Financial Disclosure
as to each other’s income, assets and expenses before the case is
negotiated or tried.
If a Spouse Commits Adultery, Can You Get More Support or Property?
The role of marital fault is largely irrelevant with regard to the distribution
of marital property. The statutory factors for the distribution of marital
property and for setting the amount and duration of maintenance do not
mention marital fault. Marital fault in general is irrelevant under the
Equitable Distribution Law of New York and is considered only when it
is so uncivilized or egregious that it shocks the conscience of the court.
Even where the misconduct is egregious, it is just one factor among many
which must be considered by the court. Examples of “egregious”
misconduct are (1) the dissipation of marital assets by an addict, and
(2) making a contract to have a spouse murdered.
How Is Short-Term or Permanent Maintenance Determined?
Short term maintenance is generally awarded where the spouse seeking support
is able to be self-supporting, and it has been a relatively short marriage.
The function of rehabilitative maintenance is to allow the recipient spouse
an opportunity to achieve financial independence. Where permanent maintenance
is awarded, the recipient spouse is older and often in impaired health.
New York courts in awarding maintenance consider the length of the marriage,
the ages, health and earning capacity of the respective parties. The duration
of maintenance is most likely to be permanent in a long marriage, and
rehabilitative in a short marriage. The marital standard of living is
a factor for consideration in determining the amount and length of the
What Is a Matrimonial Agreement?
Matrimonial Agreements include Prenuptial and Post-nuptial Agreements,
Settlement Agreements, and Separation Agreements made by the spouses.
They are usually prepared by attorneys for the spouses.
When Can Matrimonial Agreements Be Made?
Prenuptial agreements are made before a marriage. Post-Nuptial agreements
are made during a marriage and prior to a divorce.
What Is Included in Such Agreements?
The following may be included in a Matrimonial Agreement:
- Provisions for the ownership, division or distribution of separate property;
provisions for the ownership, division or distribution of marital property;
provisions for the amount and duration of maintenance.
- Other terms and conditions of the marriage relationship
- Provisions for custody, education and support of any child of the parties
- A contract to make a testamentary provision
- A waiver of the right to elect against a will
What Is Required in Order to Make Such Agreements Valid and Enforceable?
Prenuptial, post-nuptial, and separation agreements must be made in writing
signed by both parties and acknowledged in a very specific way in order
to be valid.
What Is Equitable Distribution?
Equitable distribution is a method for evaluating and dividing property
obtained by each spouse during a marriage. New York State law requires
that The Supreme Court must “equitably” (fairly) distribute
all property acquired using marital finds no matter who holds the title.
What Is Separate Property in New York?
Separate Property is defined as property attained before a marriage. This
can include gifts from a party other than the spouse, bequests, personal
injury compensation, and more. However, if the value of the property increases,
it can be considered marital property based on the other spouse’s
indirect or direct contributions to its appreciation during the marriage.
Is Property Equally Divided in Equitable Distribution?
No, equal is not synonymous with equitable. New York is not a 50/50 community
property state, which means that marital property must be distributed
fairly, but not necessarily equally, between the spouses. The factors
used to determine how to divide property are enumerated in the statute.
If My Spouse Stops Paying Child Support, Can I Stop Visitation?
No. If it ever appears that the custodial parent who receives spousal maintenance
has withheld or wrongfully interfered with the other parents’ visitation
rights, the court may decide to suspend their maintenance payments or
cancel any arrears that accumulated during the time when visitation rights
What Can I Do If I Can No Longer Afford to Pay Maintenance?
The Supreme Court of the State of New York and the New York Family Court
may modify the maintenance provisions of a divorce judgment made on or
after July 19, 1980 even where there is an agreement which continues to
exist as a separate agreement after the divorce judgment is granted by
the court. The modified judgment supersedes the terms of the prior agreement
and judgment for such period of time and under such circumstances as the
Court determines. The criteria upon which such modification may be ordered
is “Extreme Hardship.”
What About Health and Life Insurance for Me and My Children?
The Court can order a spouse to:
- Purchase, maintain or assign a policy of insurance for health and hospital
care and related services for either spouse or children
- Purchase, maintain or assign a policy of insurance on the life of either
spouse and designate either spouse or children of the marriage as irrevocable