Divorce General Information

In New York State, all divorce matters involve the resolution of six issues (where children exist), they are (1) custody, (2) visitation, (3) child support, (4) spousal support, (5) equitable distribution, and (6) grounds. While quite often, the grounds aspect tends to be overlooked, many prospective divorce clients in New York do not know that New York is considered a "fault" state, meaning, that the party seeking a divorce must prove that their spouse has done something "wrong."

Grounds for Divorce

There are six causes of action for divorce in New York State, they are (1) Cruel and Inhuman Treatment, (2) Abandonment, (3) Confinement to Prison for Three or More Years, (4) Adultery, (5) Living Separate and Apart pursuant to a Judgment of Separation, and (6) Living Separate and Apart Pursuant to a Written Separation Agreement. Cruel and inhuman treatment consists of such behaviors as verbal, mental, psychological abuse, and of course, physical abuse. The two common types of Abandonment are refusal to have sexual relations for a period of one or more years prior to the filing (sometimes referred to as “constructive” abandonment), and actual abandonment where one spouse “packs their bags” and leaves the marital residence for one or more years without returning. Confinement to prison for three or more years is less common. Adultery is commonly understood as a married person having sexual relations with a person other then their spouse. The last two causes of action are commonly referred to as “conversion” divorces. This is where the parties have been living separate and apart pursuant to a written separation agreement or a judgment of separation. To be considered “legally separated,” there must be a written agreement or a judgment of separation from the court.

Custody and Visitation

in New York is determined by a “best interests of the child” standard. Custody usually consists of two (2) components: legal and residential custody. Legal custody concerns the right of a parent or both parents to make decisions. For instance, if a parent has sole custody, that parent will make all of the major decisions for the child. However, many parents agree to joint legal custody, which means that both parents will be involved in decisions for the child. If a parent is declared the “custodial” or “residential” parent, then that parent is usually the parent that the child resides with more than half the time. Also, that parent typically receives child support from the “non-custodial” parent. In some instances, the parties agree to shared custody, which usually means that the parents have elected to share their time with the child(ren) equally.

Child Support

in New York State is typically determined by a formula called the Child Support Standards Act. While the formula itself is not complicated, the exceptions and nuances can be, this is why only a competent and qualified attorney should represent clients in child support matters.

Spousal Support

in New York is determined by a number of various factors, including, but not limited to the length of the marriage, the disparity in income of the parties, the length of time a party may need to become self-supporting after the divorce, the standard of living enjoyed during the marriage, the nature of the property being distributed between the parties, amongst others. There is no set formula for determining whether maintenance will be awarded, the amount or the duration.

Equitable Distribution

Division of property in New York State is determined by the “Equitable Distribution” Statute. Equitable Distribution does not mean equal, although in many cases, property is distributed equally. New York recognizes many forms of property not recognized in other states, such as pension benefits, deferred benefits, business interests, enhanced earnings, licenses and degrees, and even intellectual property interests, all being property subject to distribution upon divorce.

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