Posted by DivorceLine in New York Divorce Procedures
Complete overview of New York divorce laws for people considering a New York divorce or filing a New York divorce with issues to be resolved about child custody, child support, visitation and alimony.
New York Divorce Residency Requirements
In order to file your Complaint for Divorce in New York, you must make sure the Supreme Court has jurisdiction over your case. The most common way spouses are eligible to use a specific court system is by meeting the residency requirements. Meeting the New York residency requirements is typically only a concern for a spouse who has recently moved or is planning to move in the near future. The filing 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:
A. 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
B. 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
C. 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
D. The cause occurred in the state and both parties are residents thereof at the time of the commencement of the action, or
E. 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)
New York Grounds for Divorce
The Complaint for Divorce is the initial document filed with the New York court. It is in this document that the filing spouse will request the court to terminate the marriage under certain specified grounds.
The court may dissolve the marriage on any of the following grounds:
(1) The cruel and inhuman.
(2) Abandonment for 1 or more years,
(3) Imprisionment for at least 3 years.
(4) Adultery.
(5) Living separate and apart for at least 1 year.
New York Uncontested Divorce
This information is an overview of the uncontested New York divorce filing process and a summary of the divorce papers that are typically filed with the family law or domestic relations clerk. This overview is not intended to be an exact step-by-step guide for those “do it yourself divorce” filers, due to the fact that many cases are unique and the overview presented here is often not the only method of obtaining an uncontested divorce in New York.
In divorce actions, the person initiating the action is called the Plaintiff; the person responding is called the Defendant. Actions are filed in the Supreme Court, which is the county court.
New York grants divorces on six grounds. They are as follows:
> Cruel and inhuman treatment, Domestic Relations Law §170.1;
> Abandonment for a unbroken period of 1 year, DRL § 170.2;
> Imprisonment for more than 3 years after the marriage, DRL § 170.3;
> Adultery, DRL § 170.4;
> Conversion of a separation judgment, DRL § 170.5;
> Conversion of a separation agreement after living separate and apart for more than one year, DRL § 170.6.
In New York, a couple can separate in one of two ways. These are 1) by judgment of the court, or 2) by negotiating a separation agreement between themselves. Going the first route requires other grounds, such as cruel and inhuman treatment, so a negotiated agreement between the couples is easier if it can be arranged.
If a couple live apart for one year while legally separated, a Separation Judgement or Separation Agreement can be converted to a Judgment of Divorce with the separation used as the grounds for the dissolution. No other ground is necessary.
A Separation Agreement is most commonly used since it can be accomplished without involving the court.
While it is technically not a no-fault action, conversion of a separation agreement after living separate and apart for more than one year approximates the ease, if not the speed, of the no-fault method of divorce used in other jurisdictions. In this routine, the separation itself is the basis for the action.
The one-year period runs from the proper execution of the separation agreement before a notary. Filing of the separation agreement may be done simultaneously with the commencement of the divorce action. If filing is done prior to the commencement of the action, a 120-day period for effecting service on the Defendant does not begin until the Summons has been served. The Defendant may not waive Service of Summons.
When a couple sign a separation agreement, the Plaintiff normally files it or a Memorandum of Separation Agreement in the office of the clerk of the court where the divorce will happen. This agreement stipulates the terms and conditions of the separation, including the division and distribution of assets and liabilities, custody and visitation, child support and maintenance. At the same time, the Plaintiff can begin an uncontested divorce using one of the other grounds and seeking the agreed relief in the agreement. Filing the Memorandum of Separation Agreement instead of the Agreement itself shields the terms and conditions from public inspection, but care must be taken because without the original Separation Agreement, signed and properly dated, a divorce on grounds of separation will be difficult to obtain.
An uncontested divorce happens in one of two ways: 1.) as described above, happens when the couple come to agreement on every issue and negotiate the terms and conditions memorialized in an agreement; 2.) when the spouse does not or will not respond, which requires procedures described below.
When a couple cooperate in uncontested divorce, the following forms must be completed by the Plaintiff:
> Certification, which is a one-page form authenticating that the action is not frivolous. A copy of this form is attached to every other form used in the action.
> Request for an Index Number, which is completed when the action is filed. The Index number is called the docket number in many jurisdictions, and there is a $170 fee for filing this form.
> Summons, which informs the Defendant that the action has been filed. There are two versions of the Summons: 1.) is used when the Defendant is also served a Verified Complaint, and 2.) the Summons with Notice, when the Verified Complaint is not included. Both versions give the Defendant 21 days to respond (or 31 days if the Summons is delivered outside of New York). (The first version is more likely to be used when the spouses are in agreement.)
> The Affidavit of Service, which must be filed within 120 days of the delivery of the Summons. This Affidavit proves the Summons was served by either a process server or the sheriff.
> Verified Complaint, which details the reason why the divorce is being sought and the relief that is requested.
> Sworn Statement of Removal of Barriers to Remarriage, which is completed if the couple were married in a religious ceremony.
> The Affirmation (Affidavit) of Regularity, which verifies for the court that the Defendant was properly notified of the action and how he or she has responded, if at all.
> Statement of Net Worth, which is a very comprehensive declaration of the Plaintiff’s finances. This information is used to determine property division and maintenance.
> Affidavit of Plaintiff, which is used in lieu of oral testimony in all divorce actions except those where the ground for divorce is adultery. This affidavit profiles the circumstance leading to the divorce.
> Affidavit of the Defendant, which is used when the divorce is not contested. In this form, the Defendant agrees to the divorce, and he or she waives any rights under the Servicemembers Civil Relief Act.
> Child Support Forms, which must be used when child support is going to be paid to the Child Support Collection Unit, a third party who collects and distributes such payments.
> Note of Issue, which is a form recording the date and filing of the Summons.
> Request for Judicial Intervention, which is used when the court must issue orders ex parte. This form is not required in New York City.
> Affidavit Pursuant to Domestic Relations Law 75-J, which is used if there are children of the marriage and there has never been any court order directing custody.
> Notice of Settlement, which is used if the judge or the other party requests it when the Plaintiff is seeking a Judgment, Qualified Medical Order or any order signed by the court.
> Findings of Fact and Conclusions of Law (Referee’s Report), which reiterates the facts of the marriage and the conclusions of the court regarding support and maintenance.
> Judgment of Divorce, which is the instrument ending the marriage.
> USC113, which is a form recording the facts of the marriage and the divorce for record keeping purposes.
> Certificate of Dissolution, which certifies that the judgment has been entered.
> Notice of Entry, which is a record of the entry of the judgment of divorce.
A contested divorce is a much more difficult climb. Even as a couple continue to negotiate — and sometime battle — about the terms and conditions of the divorce, they may be preparing for a divorce trial. When a divorce is contested, a judge is assigned to the case, and all forms and papers are filed in his or her office, not the clerk of the courts. At the least, the Plaintiff will need all of the forms used in an uncontested divorce plus these:
> Note of Issue and Certificate of Readiness, which recapitulates the history of the action and certifies that the case is ready for trial.
> Motions and Orders in Connection with Discovery, which is the process by which the Plaintiff discovers information from the Defendant. The process of Discovery may entail subpoenas of the Defendant’s financial information. Discovery is very time consuming and it is a big factor in the cost of a contested divorce.
New York Simplified Divorce Procedures
A summary divorce may be granted in New York if: (1) the spouses lived apart for 1 year according to the terms of a separation decree or a separation agreement and (2) satisfactory proof is submitted to the court that the spouse seeking the divorce has substantially performed all the terms and conditions of the separation decree or separation agreement. There are sample divorce forms contained in the statute (Forms 1 and 12 for no-fault grounds), including the language necessary to state specific grounds and residency requirements. In addition, New York requires a financial disclosure to be filed in every divorce action. [Consolidated Laws of New York Annotated; Domestic Relations Law, Article 10, Section 170 and Article 13, Section 236].
New York Property Division Factors
In New York, the property and debt issues are typically settled between the parties by a signed Marital Settlement Agreement or the property award is actually order and decreed by the Supreme Court within the Judgment of Divorce.
New York is referred to as an “equitable distribution” state. When the parties are unable to reach a settlement, the Supreme Court will take the following approach to dividing the assets; First, it will go through a discovery process to classify which property and debt is to be considered marital. Next, it will assign a monetary value on the marital property and debt. Last, it will distribute the marital assets between the two parties in an equitable fashion. Equitable does not mean equal, but rather what is deemed by the Supreme Court to be fair.
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)
New York Spousal Support/Maintenance/Alimony Factors
In New York the support payments (if any) can certainly influence how the marital property distribution is awarded, which is why it can become a very intricate part of the final outcome of any divorce. Keeping this in mind, if you and your spouse are unable to reach and agreement on this issue, the Supreme Court will order support from one spouse to the other on a case-by-case basis as follows:
The court will determine temporary or permanent maintenance one case-by-case basis by considering the following factors:
(1) any income or assets of the parties including the property award;
(2) the length of the marriage and the age and health of the parties;
(3) the earning potential of both parties;
(4) If and how long it would take the party seeking support to become self-supporting;
(5) reduced or lost lifetime earning capacity;
(6) the presence of children of the marriage in the respective homes of the parties;
(7) the tax ramifications;
(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) any dissipation of assets;
(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)
New York Child Custody Factors
In New York, 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. (Consolidated Laws of New York – Domestic Relations Laws – Article 13 – Sections: 240)
New York Child Support Factors
Health insurance coverage may be ordered to be provided. Marital misconduct of either parent is not to be considered. There are specific Child Support Guidelines in the statute and which are presumed to be correct, unless there is a showing that the amount of support would be unjust or inappropriate. The factors to be considered are: (1) the financial resources of the child and the parents; (2) the standard of living the child would have enjoyed if the marriage had not been dissolved; (3) the physical and emotional health of the child and any special needs or aptitudes of the child; (4) the financial resources, needs, and obligations of both the noncustodial and the custodial parent; (5) the tax consequences to each parent; (6) the non-monetary contributions that the parents will make towards the care and well-being of the child; (7) the educational needs of either parent; (8) whether 1 parent’s income is substantially less than the other parent’s; (8) the needs of other children of the non-custodial parent; (9) if the child does not receive public aid, any extraordinary expenses required for the non-custodial parent to exercise visitation rights; and (10) any other relevant factors. Security may be required for the payments. [Consolidated Laws of New York Annotated; Domestic Relations Law, Article 13, Sections 236-Part B, 240, and 243 and New York Case Law].
New York Grandparent’s Rights
Grandparent Rights to Visitation: Visitation may be granted where at least one of the child’s parents is deceased or where circumstances show that conditions exist which equity would see fit to intervene. Visitation must also be in the best interest of the child. C.L.N.Y., D.R.L. §72.
When Adoption Occurs: Visitation can be continued after adoption.
Child Custody Statutes: Best interest of child. No statutory factors. C.L.N.Y., D.R.L. §240
Parents May Choose: Yes
New York Military Divorce Laws
A New York military divorce creates several unique issues as compared to a typical civilian divorce, which is why specific state and federal laws and rules will apply.
Military Protection From New York Divorce Proceedings
There are laws set up to protect active duty military members against being held in “default” from failing to respond to a divorce action. These laws were enacted to protect active military from being divorced without knowing it.
Under the Soldiers and Sailors Civil Relief Act, 50 UCS section 521 and in the discretion of the local New York court, the divorce proceeding may be postponed for the entire time the active service member is on duty and for up to 60 days thereafter (This is typically the case when the active member is serving in a war). Also, this right to have the divorce proceedings postponed can be waived by any active duty member should he or she wish to get the divorce.
Serving an Active Military Spouse
The active duty spouse must be personally served with a summons and a copy of the divorce action in order for a New York court to have jurisdiction over the active military member. In an uncontested case, the active duty spouse may not have to be served as long as he or she signs and files a waiver affidavit acknowledging the divorce action.
Residency and Filing Requirements
The typical military divorce filing requirements are as follows:
a) You or your spouse must reside in New York
b) You or your spouse must be stationed in New York
Grounds for New York Military Divorce
The grounds for a military divorce in New York are the same as a civilian divorce.
Dividing the Property
Along with the normal New York property division laws, the federal government has enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA) that governs how military retirement benefits are calculated and divided upon divorce. The USFSPA is the governing body that authorizes a direct payment of a portion of a military retirees pay to the former spouse.
The federal laws will not divide and distribute any of the military members retirement to the spouse unless they have been married 10 years or longer while the member has been active duty military.
Child Support and Spousal Support
In New York, both child support and spousal support/alimony awards may not exceed 60% of a military member’s pay and allowances. The normal New York child support guidelines, worksheets and schedules are used to determine the proper amount of child support to be paid.
New York Child Support Guidelines
The New York child support guidelines “at a glance” provides a quick reference to what applicable child support laws are considered and/or not considered when determining the appropriate New York child support order.
New York Child Support Guidelines:
Income Share Model *: YES
Percent of Income Model *: NO
Worksheets Available: YES
Extraordinary Medical Expenses Add on: YES
Childcare Add on: YES
Secondary Education Support: YES
UIFSA: NO
* The Income Shares Model: New York child support is calculated by estimating the amount of support that would have been available to the child(ren) if the family had remained intact. This estimated amount is then divided proportionally to the parents according to each parent’s income. This is easily done by using the New York child support worksheet and the estimated incomes are typically substantiated by past pay stubs or w-2s.
For example: If the father has a higher income than the mother, he would then be responsible for the greater portion of the child support obligation. Conversely, if the father has a lower income than the mother, he would then be responsible for the smaller portion of the child support obligation.
As a reminder, the child support obligation can manifest itself differently between a custodial and a noncustodial parent.
For example: It is not common for a custodial parent to be paying support to a non-custodial parent.
New York Child Support Definitions
Section 240(1-b) of the Domestic Relations Law lists 10 factors that should be considered in deciding on the amount of child support for (i) combined incomes of more than $80,000 per year ($6,666.67 per month) or (ii) to vary the numerical result of these steps because the result is “unjust or inappropriate.”
These factors are:
1.The financial resources of the parents and the child.
2.The physical and emotional health of the child and his/her special needs and aptitudes.
3.The standard of living the child would have enjoyed if the marriage or household was not dissolved.
4.The tax consequences to the parents.
5.The non-monetary contributions the parents will make toward the care and well-being of the child.
6.The educational needs of the parents.
7.The fact that the gross income of one parent is substantially less than the gross income of the other parent.
8.The needs of the other children of the non-custodial parent for whom the non-custodial parent is providing support, but only (a) if Line 22 is not deducted; (b) after considering the financial resources of any other person obligated to support the other children; and Cc) if the resources available to support the other children are less then the resources available to support the children involved in this matter.
9.If a child is not on public assistance, the amount of extraordinary costs of visitation (such as out-ofstate travel) or extended visits (other than the usual two to four week summer visits), but only if the custodial parent’s expenses are substantially reduced by the visitation involved.
10.Any other factor the court decides is relevant.
Definitions:
(1) Basic child support obligation” shall mean the sum derived by
adding the amounts determined by the application of subparagraphs two
and three of paragraph (c) of this subdivision except as increased
pursuant to subparagraphs four, five, six and seven of such paragraph.
(2) Child support” shall mean a sum to be paid pursuant to court
order or decree by either or both parents or pursuant to a valid agree-
ment between the parties for care, maintenance and education of any
unemancipated child under the age of twenty-one years.
(3) Child support percentage” shall mean:
a) seventeen percent of the combined parental income for one child;
b) twenty-five percent of the combined parental income for two children;
c) twenty-nine percent of the combined parental income for three children;
d) thirty-one percent of the combined parental income for four children; and
e) no less than thirty-five percent of the combined parental income for five or more children.
(4) Combined parental income” shall mean the sum of the income of
both parents.
(5) Income shall mean, but shall not be limited to, the sum of the
following:
(i) gross (total) income as should have been or should be reported in
the most recent federal income tax return. If an individual files
his/her federal income tax return as a married person filing jointly,
such person shall be required to prepare a form, sworn to under penalty
of law, disclosing his/her gross income individually;
(ii) investment income reduced by sums expended in connection with such investment;
(iii) the amount of income or compensation voluntarily deferred and income received, if any, from the following sources:
(A) workers` compensation,
(B) disability benefits,
(C) unemployment insurance benefits,
(D) social security benefits,
(E) veterans benefits,
(F) pensions and retirement benefits,
(G) fellowships and stipends
(H) annuity payments;
(iv) at the discretion of the court, the court may attribute or impute
income from, such other resources as may be available to the parent,
including, but not limited to:
(A) non-income producing assets,
(B) meals, lodging, memberships, automobiles or other perquisites that are provided as part of compensation for employment to the extent that such perquisites constitute expenditures for personal use, or which expenditures directly or indirecly confer personal economic benefits,
(C) fringe benefits provided as part of compensation for employment, and
(D) money, goods, or services provided by relatives and friends;
(v) an amount imputed as income based upon the parent`s former
resources or income, if the court determines that a parent has reduced
resources or income in order to reduce or avoid the parent`s obligation
for child support;
(vi) the following self-employment deductions attributable to self-employment carried on by the taxpayer:
(A) any depreciation deduction greater than depreciation calculated on a straight-line basis for the purpose of determining business income or investment credits, and
(B) entertainment and travel allowances deducted from business income to the extent said allowances reduce personal expenditures;
(vii) the following shall be deducted from income:
(A) unreimbursed employee business expenses except to the extent said expenses reduce personal expenditures,
(B) alimony or maintenance actually paid to a spouse not a party to the instant action pursuant to court order or validly executed written agreement,
(C) alimony or maintenance actually paid or to be paid to a spouse that is a party to the instant action pursuant to an existing court order or contained in the order to be entered by the court, or pursuant to a validly executed written agreement, provided the order or agreement provides for a specific adjustment, in accordance with this subdivision, in the amount of child support payable upon the termination of alimony or maintenance to such spouse,
(D) child support actually paid pursuant to court order or written
agreement on behalf of any child for whom the parent has a legal duty of support and who is not subject to the instant action,
(E) public assistance,
(F) supplemental security income,
(G) New York City or Yonkers income or earnings taxes actually paid,
(H) federal insurance contributions act (FICA) taxes actually paid.
New York Divorce Definitions
This collection of definitions will help clarify some unique characteristics to the New York Divorce laws, process and paperwork which is filed with the court.
Filing Party Title:
Plaintiff
The spouse who will initiate the Divorce by filing the required paperwork with the court.
Non-Filing Party Title:
Defendant
The spouse who does not initiate the Divorce with the court.
Court Name:
Supreme Court of the State of New York, _____________ County
The proper name of the court in which a Divorce is filed in the state of New York. Each jurisdictional court typically has a domestic relations or a family law department or division.
The state run office devoted to enforcing existing child support orders and collecting any past due child support.
Document Introduction:
In Re the Marriage of:
The lead-in verbiage used in the legal caption or header of the documents filed with the court. The introduction typically prefaces both spouse’s names.
Initial Divorce Document:
Verified Complaint for Divorce
The title and name of the legal document that will initiate the New York Divorce process. The filing spouse is also required to provide the non-filing spouse a copy of this document.
Final Divorce Document:
Judgment of Divorce
The title and name of the legal document that will finalize the New York Divorce process. This document will be signed by the judge, master, or referee of the court to declare your marriage officially terminated.
Clerk’s Office Name:
Office of the Clerk of the County Court
The office of the clerk that will facilitate the Divorce process. This is the title you would address letters to or ask for when contacting the courthouse.
The grounds for legal separation (separation from bed and board) in New York are: (1) adultery; (2) abandonment; (3) imprisonment for 3 or more consecutive years; (4) neglect of and failure to provide support for a wife; and (5) cruel and inhuman treatment. If only 1 spouse resides in New York at the time of filing the legal separation, the residency requirement is 2 years. However, the requirement is reduced to 1 year if: (1) the spouses were married in New York and either spouse is still a resident; (2) they once resided in New York and either spouse is still a resident; or (3) the grounds for legal separation arose in New York. In addition, there is no residency time limit requirement if both of the spouses were residents of New York at the time of filing the legal separation and the grounds for legal separation arose in New York. [Consolidated Laws of New York Annotated; Domestic Relations Law, Article 11, Sections 200, 230, and 231].
Property Distribution:
Equitable Distribution
The applicable New York law that will dictate how property and debt is to be divided upon Divorce.
