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New York Divorce Laws
Residency and Filing Requirements:In order to file for a divorce in New York, residency requirements must be met for the court to accept the case. If the court discovers it does not have jurisdictional rights to hear the case it will not be accepted or it will eventually be dismissed. The requirements are as follows:
Required residence of parties. An action to annul a marriage, or to declare the nullity of a void marriage, or for divorce or separation may be maintained only when:
1. The parties were married in the state and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or
2. The parties have resided in this state as husband and wife and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or
3. The cause occurred in the state and either party has been a resident thereof for a continuous period of at least one year immediately preceding the commencement of the action, or
4. The cause occurred in the state and both parties are residents thereof at the time of the commencement of the action, or
5. Either party has been a resident of the state for a continuous period of at least two years immediately preceding the commencement of the action. (Consolidated Laws of New York - Domestic Relations Laws - Article 13 - Sections: 230 and 231)
Grounds for Filing:The Complaint for Divorce must declare the appropriate New York grounds upon which the divorce is being sought. The appropriate lawful ground will be that which the parties agree upon and can substantiate, or that which the filing spouse desires to prove to the court. The divorce grounds are as follows:
Action for divorce. An action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on any of the following grounds:
(1) The cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant.
(2) The abandonment of the plaintiff by the defendant for a period of one or more years.
(3) The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.
(4) The commission of an act of adultery, provided that adultery for the purposes of Articles Ten, Eleven, and Eleven-A of this Chapter, is hereby defined as the commission of an act of sexual intercourse, oral sexual conduct or anal sexual conduct, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of plaintiff and defendant. Oral sexual conduct and anal sexual conduct include, but are not limited to, sexual conduct as defined in Subdivision Two of Section 130.00 and Subdivision Three of Section 130.20 of the penal law.
(5) The husband and wife have lived apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment, and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree or judgment.
(6) The husband and wife have lived separate and apart pursuant to a written agreement of separation, subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded, 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 or she has substantially performed all the terms and conditions of such agreement. Such agreement shall be filed in the office of the clerk of the county wherein either party resides. In lieu of filing such agreement, either party to such agreement may file a memorandum of such agreement, which memorandum shall be similarly subscribed and acknowledged or proved as was the agreement of separation and shall contain the following information: (a) The names and addresses of each of the parties, (b) The date of marriage of the parties, (c) The date of the agreement of separation and (d) The date of this subscription and acknowledgment or proof of such agreement of separation.
(7) Irretrievable breakdown in relationship for a least six months.
(Consolidated Laws of New York - Domestic Relations Laws - Volume 8 - Sections: 170 and Article 10, Section 170, and Article 13, Section 230)
Filing Spouse Title:Plaintiff. The Plaintiff is the spouse who initiates the filing procedure with the family law or domestic relations court.
Non-Filing Spouse Title:Defendant. The Defendant is the spouse who does not file the initial divorce papers, but rather receives them by service.
Court Name:Supreme Court of the State of New York, __________ County. This is the New York court where the divorce will be filed. The court will assign a case number and have jurisdictional rights to facilitate and grant the orders concerning, but not limited to: property and debt division, support, custody, and visitation. The name of the court is clearly represented at the top of all documents that are filed.
Primary Documents:Complaint for Divorce and Judgment of Divorce. These are the essential documents needed to start and finalize a divorce according to New York law. There are anywhere from ten to twenty other documents that may be required throughout the filing process. A few other documents that are typically filed during the process are: Summons (UD-1), Marital Settlement Agreement, Sworn Statement of Removal of Barriers to Remarriage (UD-4), Affidavit for Defendant in Divorce Action (UD-7), Qualified Medical Support Order (UD-8b), and Findings of Fact/Conclusions of Law (UD-10).
Court Clerk's Title:Office of the Clerk of the County Court. The clerk or the clerk's assistants will be the people managing your paperwork with the court. The clerk's office will keep the parties and the lawyers informed throughout the process in regards to additional paperwork that is needed, further requirements, and hearing dates and times.
Property Distribution:Since New York is an "equitable distribution" state, the marital property shall be divided in an equitable fashion. Equitable does not mean equal, but rather what is fair. The court will encourage the parties to reach a settlement on property and debt issues otherwise the court will declare the property award.
Disposition of property in certain matrimonial actions.
a. Except where the parties have provided in an agreement for the disposition of their property pursuant to subdivision three of this part, the court, in an action wherein all or part of the relief granted is divorce, or the dissolution, annulment or declaration of the nullity of a marriage, and in proceedings to obtain a distribution of marital property following a foreign judgment of divorce, shall determine the respective rights of the parties in their separate or marital property, and shall provide for the disposition thereof in the final judgment.
b. Separate property shall remain such.
c. Marital property shall be distributed equitably between the parties, considering the circumstances of the case and of the respective parties.
The court shall consider the following factors when distributing property upon divorce:
(1) The income and property of each party at the time of marriage, and at the time of the commencement of the action;
(2) The duration of the marriage and the age and health of both parties;
(3) The need of a custodial parent to occupy or own the marital residence and to use or own its household effects;
(4) The loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution;
(5) Any award of maintenance under subdivision six of this part;
(6) 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;
(7) The liquid or non-liquid character of all marital property;
(8) The probable future financial circumstances of each party;
(9) 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;
(10) The tax consequences to each party;
(11) The wasteful dissipation of assets by either spouse;
(12) Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
(13) Any other factor which the court shall expressly find to be just and proper. (Consolidated Laws of New York - Domestic Relations Laws - Article 13 - Sections: 236)
Spousal Support:Not all cases involve support from one spouse to the other. The obligation of one spouse to support the other financially for a temporary or permanent basis is decided on a case-by-case basis as agreed to by the parties or at the court's discretion.
In any action or proceeding brought (1) During the lifetime of both parties to the marriage to annul a marriage or declare the nullity of a void marriage, or (2) For a separation, or (3) For a divorce, the court may direct either spouse to provide suitably for the support of the other as, in the court's discretion, justice requires, having regard to the length of time of the marriage, the ability of each spouse to be self supporting, the circumstances of the case and of the respective parties. Such direction may require the payment of a sum or sums of money either directly to either spouse or to third persons for real and personal property and services furnished to either spouse, or for the rental of or mortgage amortization or interest payments, insurance, taxes, repairs or other carrying charges on premises occupied by either spouse, or for both payments to either spouse and to such third persons.
In determining appropriate temporary or permanent maintenance which has been paid. In determining the amount and duration of maintenance the court shall consider:
(1) The income and property of the respective parties including marital property distributed pursuant to subdivision five of this part;
(2) The duration of the marriage and the age and health of both parties;
(3) The present and future earning capacity of both parties;
(4) The ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefor;
(5) Reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage;
(6) The presence of children of the marriage in the respective homes of the parties;
(7) The tax consequences to each party;
(8) Contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
(9) The wasteful dissipation of marital property by either spouse;
(10) Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; and
(11) Any other factor which the court shall expressly find to be just and proper. (Consolidated Laws of New York - Domestic Relations Laws - Article 13 - Sections: 236)
Child Custody:When minor children are involved in a divorce, the New York courts will do everything possible to help lessen the emotional trauma the children may be experiencing. If the parents cannot come to an agreement regarding the issues involving the children, the court will establish the custody order at its discretion.
In any action or proceeding brought (1) To annul a marriage or to declare the nullity of a void marriage, or (2) For a separation, or (3) For a divorce, or (4) To obtain, by a writ of habeas corpus or by petition and order to show cause, the custody of or right to visitation with any child of a marriage, the court shall require verification of the status of any child of the marriage with respect to such child's custody and support, including any prior orders, and shall enter orders for custody and support as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties and to the best interests of the child and subject to the provisions of Subdivision One-C of this Section. (Consolidated Laws of New York - Domestic Relations Laws - Article 13 - Sections: 240)
Child Support:New York child support guidelines are based on the Income Shares Model for calculating child support. The monthly support amount determined by applying the guidelines is divided proportionally according to each parent’s income. These two support amounts are then offset to establish which parent will pay the other parent for support of the child. All income is typically verified by examining past W-2's and child support worksheets are available at the courthouse.
Order of support by parent. When the court makes an order of support pursuant to the support guidelines, and where permitted under Federal Law and where the record of the proceedings contains such information, the court shall require the Social Security Number of such parent to be affixed to such order; provided, however, that no such order shall be invalid because of the omission of such number. Where the record of the proceedings contains such information, such order shall also include on its face the name and address of the employer, if any, of the person chargeable with support provided, however, that failure to comply with this requirement shall not invalidate such order.
In determining the appropriate support amount the court will consider the following factors, but not limited to: 1. Financial resources of the parties involved, including the children. 2. The standard of living prior to the divorce. 3. The physical and mental health of the children. 4. The tax ramifications. 5. Educational needs of the parents and children. 6. Other children outside the marriage each parent may have. (Consolidated Laws of New York - Domestic Relations Laws - Article 13 - Sections: 236, 240, and 243)
Copyright Notice: The above synopsis of New York divorce laws is original material which is owned and copyrighted by Divorce Source, Inc. This material has been adapted from applicable state laws and unauthorized reproduction is prohibited. Violation of this notice will result in immediate legal action.
New York does not automatically give custody of children to any one parent. In deciding custody, the court only considers what is in the best interest of the child. It considers who gave primary care during the marriage, scheduled doctors' appointments, and attended school meetings. Generally, the court allows the non-custodial parent ample visitation with the child and even awards joint custody. Visitation is often only limited in circumstances where there is abuse.
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