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Divorce Actions - Know Your Rights

The decision to seek a divorce or separation is a difficult one under any circumstances. Each matrimonial action is unique to the parties involved. The one common theme in all matrimonial actions is the importance of having a general knowledge of the applicable law, since decisions will need to be made regarding many complex issues at a time of extreme emotional vulnerability for the parties involved. For example, decisions regarding settlement offers, custody and visitation, distribution of property, and other matters that could affect the quality of life for the party seeking the divorce and any children of the marriage for years to come must be made often in a relatively short time period.

Grounds for Divorce

Unlike many other states, New York has a public policy which emphasizes and favors the family thereby making it more difficult to obtain a divorce. In fact, prior to the Divorce Reform Act of 1966, effective September 1, 1967, the sole ground for divorce of this State was adultery. While the Divorce Reform Act of 1966 amended Domestic Relations Law Section 170 to allow a divorce on five (5) additional grounds, it did not go so far as to allow "no-fault" divorces upon demand on grounds such as "irreconcilable differences" as have many states.

Domestic Relations Law Section 170, entitled Action for Divorce, allows a divorce and hence a dissolution of the marriage on the following grounds:

  • Cruel and inhuman treatment - by which the conduct of one spouse so endangers the physical or mental well being of the other as renders it unsafe or improper to cohabit with one another;
  • Abandonment - absence of one spouse for a period of one (1) or more years;
  • Confinement - of one spouse in prison for a period of three (3) or more consecutive years;
  • Act of Adultery - which includes not only "sexual intercourse" with someone other than a spouse, but also "deviate sexual intercourse" as defined in the Penal Law;
  • Decree of Judgment or Separation - parties have lived separate and apart for at least one(1) year and have substantially complied with all the terms and conditions of the decree;
  • Agreement of Separation - parties have lived separate and apart pursuant to a for at least one (1) year or more years after the execution of such Agreement and have substantially complied with all the terms and conditions of the agreement.

Of the foregoing, the divorce ground of "cruel and inhuman treatment" is the most common. However, a divorce will not be granted upon "cruel and inhuman treatment" simply because the parties are no longer compatible, there is marital strife, quarreling or lack of harmony or the marriage is considered a "dead" one. Rather, "cruel and inhuman treatment" consists of "serious misconduct" and the party seeking a "cruelty" divorce must generally show a course of conduct by the other spouse which is harmful to the physical or mental health of the other and makes cohabitation either unsafe or improper. In marriages of long duration, a higher degree of proof is required to be granted a divorce based upon "cruel and inhuman treatment" and one isolated act of mistreatment will rarely suffice.

The last two (2) grounds for divorce listed above are commonly referred to as the "conversion divorce" grounds because they allow divorces predicated upon a prior Judgment of Separation or a Separation Agreement.

For the most part, the grounds for separation are similar to the grounds for divorce as they include adultery, cruel and inhuman treatment and confinement in prison for three (3) or more years. Abandonment is also a ground for separation but, unlike abandonment as a divorce ground, the abandonment to warrant a separation need not continue for a period of one (1) year. In addition, neglect or refusal to support your spouse where there is a legal duty to do so, constitute a ground for separation although it is not a ground for divorce.

It is interesting to note that although the grounds for divorce and separation are similar, Judgments of Separation are now much less common because most people often prefer to dissolve the marital relation as expeditiously as possible. However, many married couples live apart pursuant to a Separation Agreement for a year or more before actually seeking a divorce.

If after the commencement of a matrimonial action you and your spouse can agree upon an amicable settlement of all of the ancillary economic issues of such action, the grounds for divorce will not be important as one party or both, will allow the other to proceed by default on their action for divorce based upon bland grounds of cruel and inhuman treatment. This allows the marriage to be dissolved as soon as practicable. However, the grounds for divorce may become important if a party defends his spouses action for divorce as a tactical device. The reason for this tactic is that without a dissolution of the marriage, there cannot be an equitable distribution of the property. You may hear lawyers refer to this situation as "No Distribution Without Dissolution". On the other hand, if there is not a dissolution of the marriage and hence no equitable distribution of the property, the obligation to support one's spouse continues so long as the marriage does.

Therefore, while equitable distribution may be avoided if a divorce is denied, the obligation to support is not.

It is important to remember that although the grounds for divorce are important to procuring a divorce and hence an equitable distribution of marital property, the grounds for divorce or a party's misconduct during the marriage do NOT affect the award of equitable distribution UNLESS such misconduct is so egregious or terrible as to shock the conscience of the Court.

The foregoing is only a general description of the grounds upon which a divorce may be granted and how such grounds may impact upon the equitable distribution of marital property, if at all.

Equitable Distribution

Once a divorce decree is granted, the court will equitably distribute the marital property. This is a winding up of the economic affairs of the "economic partnership" through "equitable distribution" of the marital property.

Marital property is defined as all property acquired by either or both spouses during the marriage from the date of the marriage through the commencement of a matrimonial action or the execution of a separation agreement, regardless of the form i which title is held.

While the term "equitable distribution" does not dictate "equal" distribution of marital assets, Courts are generally distributing property on an equal basis between spouses in marriages of long duration in which there are children.

Separate property is an exception to marital property and includes: property acquired before marriage or property acquired by inheritance or gift from a person other than a spouse; compensation for personal injuries; or property described as separate property by a written agreement of the parties. However, separate property can be considered marital property if it is commingled with marital property. Separate property acquired before the marriage may also be considered marital property if it has appreciated in value during the marriage.

To enable a court to determine the most fair and equitable distribution of marital property (as well as appropriate levels of child support and maintenance), the Equitable Distribution Law requires full financial disclosure by both parties to a divorce action via the exchange of sworn net worth statements accompanied by a representative pay check stub and the most recently filed state and federal tax returns. Failure to comply with this mandatory disclosure may subject a party to court-ordered penalties or sanctions.

An elaboration of a spouse's efforts, expenditures, contributions and services as a spouse, parent, wage earner, and homemaker to the acquisition of marital property and to their spouses' career or career potential, and/or loss of career or career potential because of their devotion to home and family is essential to a determination of how the marital property will be equitably distributed.


The amount and duration of maintenance (formerly alimony) is determined by such factors as the duration of the marriage; the age and health of both parties; the present and future earning capacity of both parties, the ability of the party seeking maintenance to become self-supporting; reduced or loss of life-time earning capacity as a result of having foregone or delayed education, employment, or career opportunities, among other things.  The courts also consider the lifestyle of the family during the marriage and non-monetary contributions made to the marriage by the spouse seeking maintenance. 

There is a strong policy interest on the part of courts for spouses to become financially independent. However, courts often do not recognize what it will take for a previously "dependent" spouse to achieve real financial independence. The need for additional education and/or the fact that the spouse may not have work experience outside of the home are two mitigating factors that must be considered in determining both the amount and the duration of any maintenance decree.

Child Support

A custodial parent (one who has primary child care responsibility and does not live with the children's other parent) has a right to financial support from that other parent pursuant to the Child Support Standards Act (1989). Under this law, both parents must contribute, whether or not they were ever married to each other, and even if the other parent is unemployed or does not earn much money.

Courts determine the amount of child support ("basic child support obligation") to be provided based upon a relatively simple formula involving a percentage of the parents' "combined parental income."

The formula to be applied to each parent's income is as follows: first, gross income is determined (i.e., the amount which was or should have been reported on the most recent Federal Income Tax return). Any benefits received are then added to gross income: e.g., worker's compensation, disability, social security, veteran's benefits, pensions, fellowships, and annuity payments. Nonrecurring payments such as lottery winnings, life insurance policies, gifts and inheritances, among others may also be included as income by the court. (Public Assistance payments are not considered benefits to be added to the gross income).

This amount is then reduced by any alimony, child support payments to other children, New York City or Yonkers tax and FICA (social security) taxes paid. (This is intended to be a general guide - there may be other additions or subtractions.)

Next the respective incomes for each parent are combined and the total is multiplied by 17% (0.17) for one child; 25% (0.25) for two children; 29% (0.29) for three children; 31% (0.31) for four children; and 35% (0.35) for five or more children.

Once a total figure for child support is arrived at, the court will then determine the percentage that each parent should contribute based on the same proportion as each parent's income is to the combined parental income. (E.g. if the noncustodial parent's income is 60% of the "combined parental income" then that will pay 60% of the "basic child support obligation".)

In addition to this basic child support, if the custodial parent works, the noncustodial parent must pay a prorated share of child care costs that are incurred. If the custodial parent is seeking work or participating in qualifying educational activities (i.e. leading to employment), it is within the discretion of the court to apportion reasonable child care costs.

The noncustodial parent must also pay for a prorated portion of any present or future uninsured medical expenses of the children. Finally, the noncustodial parent may also be required to pay for a prorated share of the children's present or future post-secondary, private, special, or enriched educational expenses and summer camp/program expenses depending upon the particular circumstances of the case and the best interests of the children.

Custody and Visitation

Under New York Law, a "best interests of the child" standard is applied in order to determine which parent should have custody of the children of the marriage or whether there should be joint custody. In general, this requires the court to look at a number of factors in order to determine the relative fitness of either parent to function as a parent and to provide for the emotional and physical needs of the child on a consistent basis. The courts will look at which parent is the primary caregiver of the children.

Some factors that would have a negative impact on a parent's custody claim are: diagnosed mental illness, abuse of alcohol or drugs (unless there has been successful participation in a treatment program); neglect of children; domestic violence against the other parent; undesirable lifestyle; and abandonment.

Factors that would not (or should not) affect a custody determination include: the lower economic status of one of the parents since courts can equalize the parent's economic status through maintenance and child support awards and discreet sexual activity. A preference for persons of the same sex are not the basis for denial of custody.

Where the parents work, the court must be satisfied that there are adequate child care arrangements and as between working parents preference for custody will be given to the parent who works regular hours and has time left to spend with the children. A parent who does not work full-time outside the home but is unwilling to devote substantial time to the children will have their claim to custody weakened.

Other factors of importance to the custody determination include parent/child relationships as to whether it is especially poor or especially good. However, the court will want to determine that the child has not been deliberately alienated against one parent. While not determinative, a child's preference should be considered by the court. The weight such a preference will be given depends upon the child's age, maturity, and freedom from parental coercion. Stability of environment is another factor that courts deem important and they are reluctant to remove a child from a familiar environment.

There is a strong preference to keep siblings together, and courts will deny arrangements that separate siblings in the absence of compelling circumstances.

Where religion is a factor in a custody dispute, courts initially take the posture on non-interference due to the constitutional protection of religious freedom. However, courts may inquire into a child's actual ties to a particular religion or as to whether certain religious practices threaten the health or welfare of a child.

The foregoing list is not exhaustive but constitutes the factors most commonly at issue in custody determinations-ultimately each case is determined on the totality of the circumstances.

In general, custody encompasses the right of parents to make all decisions concerning a minor child's education, discipline, health care, religion, place of residence, and associations with others.

Where custody is awarded to one parent, that parent has both physical custody as well as decision-making authority. Joint custody can include many different types of arrangements including: divided joint physical custody and joint decision making authority; or primary physical custody in one parent and joint decision making authority.

Courts will require that the custodial parent allow a reasonable schedule of visitation, including some summer and school vacation time, specified holidays, and regular contact by phone, unless the custodial parent can show that there has been or will be serous harm to the child caused by visitation with the noncustodial parent.

Other Special Relief

Under the Domestic Relations Law, the Court is authorized to order one spouse to purchase or maintain health or life insurance for the other spouse and for the parties' children.

Emergency Relief

Order of Protection: A court may provide a temporary or permanent order of protection for a spouse who presents evidence that the other spouse has threatened, or acted in an emotionally or physically violent manner and is likely to do so again. Such orders can exclude the offending spouse from the marital residence, the complaining spouse's place of work and other locations that he/she frequents, and may include the children of the marriage. Such an order does not provide absolute protection but may serve as a deterrent to a violent spouse.

Restraint of Assets: In situations in which it appears that the spouse holding substantial assets may dissipate or transfer those assets prior to a determination of marital property, the other spouse may make a motion to the court that the spouse holding the assets be restrained from doing anything with those assets until there can be a determination of the marital estate.

Expert Fees: A court may order that fees be paid for experts, such as accountants, where evaluation of the assets of the marital estate requires the service of such an expert.

Attorney Fees: Where a spouse seeking a divorce does not have funds to pay attorney's fees, a Court may order that the other spouse pay for such fees.

Hidden Income

The amount of income your spouse has is an important number to determine in a divorce. Income is a crucial factor in determining maintenance, also known as alimony and spousal support. Child support is based on the income of both parents. If your spouse has his/her own business, that business will be considered an asset if it has value. The income of the business is a significant factor in determining the business's worth.

Many times income can be determined solely by reviewing documentation such as tax returns, W-2's, and 1099's. However, there are times when income is much more difficult to decipher. Issues such as unreported cash inflated tax deductions, legitimate tax deductions that one derives personal benefit from, reimbursement for expenses and fringe benefits from your spouse's employer must not be ignored in ascertaining your spouse's true income.

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Fault grounds for divorce include adultery, constructive abandonment for at least one (1) year, cruel and inhuman treatment, and imprisonment of a spouse for three (3) or more years. Prior to October 2010, other than a legal separation agreement that was filed with the court, divorces were based on fault.
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