No, New York is considered a fault divorce state. There are six grounds for divorce, five of which require proof of misconduct or fault by the other spouse. The only ground that does not require a finding of fault is the ground permitting a party to sue for divorce after the parties have lived separate and apart for one or more years pursuant to a written separation agreement. Since the parties must consent to the signing of the separation agreement a party cannot obtain a divorce without the other spouse's consent to a written separation agreement or proceeding on the fault grounds.

Equitable distribution is a general term that basically means that a court, upon dissolution of the marriage, is empowered to divide marital property in accordance certain factors. New York is an equitable distribution state and Not a community property state. The equitable distribution law can be found in Domestic Relations Law section 236 B.

If the divorce is denied, the court cannot equitably distribute property. It can, however, decide other issues, such as custody, child support, exclusive use and occupancy of the marital residence, and maintenance. If maintenance is awarded it must be for an indefinite period of time, i.e. it cannot be limited to a number of years.

There is no preference of either spouse in a custody proceeding. Domestic Relations Law section 240 states that there is no prima facie fight to the custody of the child in either parent.

Yes. All retirement benefits acquired during the marriage are marital property subject to equitable distribution. Retirement benefits consist of among other things, pensions; 401(k) plans, employee stock option plans, annuities; and any other form of deferred compensation.

If a court awards a spouse part of the pension benefits of the other spouse, it is transferred by means of a domestic relations order, If it is a pension governed by ERISA, then the domestic relations order must comply with ERISA and the Internal Revenue Code. Once the pension plan administrator determines that the domestic relations order is in proper form it is called a qualified domestic relations order (QDRO) and will be filed with the pension plan administrator. Attorneys usually obtain the services of a pension actuary to prepare the order.

If the IRA is transferred to a rollover IRA by means of a qualified domestic relations order, there are no tax consequences at that time. Taxes will be imposed upon withdrawal of the IRA funds transferred to the spouse.

All marital assets will be equitably distributed. It is important to have proof of the value of the marital assets to enable the court to make a distribution.

As a general rule, marital fault is not a factor in the court's determination of equitable distribution. If the conduct of a spouse results in waste of marital assets, it will be considered. This is referred to as economic fault.

There are 13 factors set forth in Domestic Relations Law section 236 B 6, They are:

Yes. The internal revenue code states that alimony (maintenance) is taxable to the recipient and deductible by the payor. The parties are permitted to agree that the maintenance will not be taxable by the recipient and not deductible by the payor.

No. A property distribution is not taxable. The only tax consequence that will possibly arise will be upon the sale of those assets.

A custodial parent is entitled to child support in accordance with the Child Support Standards Act (CSSA). The child support formula and guidelines can be found in Domestic Relations Law section 240 or Family Court Act section 413. The percentages are based on gross income less FICA taxes, Medicare taxes, and local (NYC or Yonkers) income taxes, Basically the formula is as follows:

No. Child support is tax free.

The internal revenue code provides that the custodial parent is entitled to the dependency exemption for the children. If the custodial parent gives that right to the non-custodial parent she/he waives that right by signing form 8332.

The parties are free to chart their own course in a divorce action. If each party recognizes that marriage is an economic partnership, are forthright in disclosing all marital assets, and are willing to share those assets, a costly and time-consuming trial can be avoided.