Women studying for Divorce in New York

Divorce in New York State: 10 Things to Know Before Seeing a Lawyer

Whether you knew it was coming or taken by surprise, divorce can be difficult and overwhelming. Unless you’ve been through it before, you probably have no idea what to do or where to turn. Divorce in New York is complicated, but it need not be confusing. There are specific steps that New York State Law, also known as The Domestic Relations Law, requires in order to obtain a divorce.

  1. Have a legitimate reason to divorce. Until recently, the usual reasons or ‘legal grounds’ for divorce were based on one spouse doing something wrong, like adultery or abandonment. Today, in regard to divorce in New York State we have ‘no fault divorce’ which is one spouse swearing in an affidavit that the marriage has been irretrievably broken for a period of six months or longer. If you and your spouse are able to arrive at an agreement about all issues related to children, finances and property, you can proceed directly with a ‘no fault’ divorce. If, however, you and your spouse need to negotiate these issues, you may still file and proceed on this ground, but will also need the help of an attorney and/or a mediator to help you arrive at reasonable terms.
  2. Meet the residency requirement before filing. With some exceptions, either you or your spouse need to have been living in NYS for a continuous period of at least two years immediately before starting your divorce. Provided certain other requirements are met, you can still file for divorce in NYS even if you were married in a different state.
  3. New York State Supreme Court grants divorces, not Family Court. Family court rules on child custody, child support and other family-related issues, however, only the Supreme Court can grant you a divorce. Every county has its own Supreme Court with a matrimonial clerk’s office that processes divorce paperwork. Total court fees are approximately $450.00.
  4. Make sure your spouse is properly served with divorce papers. Generally, papers must be served on your spouse a) within 120 days after you file, b) by hand-delivery in person by almost anyone but you, and c) almost anywhere and anytime but not on Sunday. Violating the rules of proper service can have potentially damaging legal consequences down the road For more on being served divorce papers — and next steps, check out this SAS article. 
  5. Be patient. The length of time it takes for the court to grant your divorce varies according to whether your divorce is uncontested or contested. Each county also operates slightly differently; some have more clerks and judges while others are more overloaded with cases. Ensuring that paperwork is complete and on time is something you can do to help avoid unnecessary delay.
  6. When ruling on custody of children, judges do not declare winners and losers. Judges adopt the prevailing legal standard known as “The Best Interests of the Child”. Therefore, your strategy in your negotiations with your spouse, or in court, should not be to argue why you should ‘win’ but rather, to present a persuasive statement about what you believe is best for your children and why.
  7. Keep accurate records of your income and expenses. Children have an absolute right to financial support from both parents until age 21. A 50/50 custody arrangement does not relieve the higher earning parent from their obligation to pay child support, which is calculated not only by what comes in, but also by what goes out for expenses. As a general rule of thumb, you should expect to pay a total of at least 17% of combined parental income for one child, 25% for two, and 29% for three.
  8. Unlike children, spouses do not have an absolute legal right to support. Legal ideology has shifted away from ‘the lifestyle to which you have become accustomed’ to ‘maintenance’. Simply put, unless one spouse is destined to become a public charge, the courts are unlikely to impose an order of spousal support that differs from what the spouses already agreed to.
  9. Equitable does not mean equal. Generally speaking, regarding the law for divorce in New York everything a spouse had before marriage is their separate property; everything acquired afterwards is marital, subject to equitable division, based on factors such as one’s earning potential and assets. Taking inventory of all your ‘stuff’ and assigning a value to each asset will go a long way towards reaching a fair settlement.
  10. You are not alone. Now that you have some of the basics, you are ready to select your lawyer, divorce coach, financial adviser – even your friends. These are the people who will walk beside you during your journey, and who can help you become the person you wish to be on the other side. For more education — if you are thinking about or preparing for divorce, here are 36 other things to help you stay informed and centered.

 

“Your strategy in your negotiations with your spouse, or in court, should not be to argue why you should ‘win’ but rather, to present a statement about what you believe is best for your children … and why.”

 

Debra Mechanick is a Social Worker and Matrimonial Attorney, practicing in mid-town Manhattan. Debra combines her expertise in Social Work and the Law to help clients achieve non-adversarial solutions to the complex legal challenges associated with divorce. Through mediation, Debra carefully guides the divorcing couple through a series of negotiations that result in an agreement that is uniquely suited to the needs of their particular family. 

Particularly knowledgeable about divorce in New York, Debra serves on the New York City Bar Association’s Matrimonial Law Committee and provides pro bono legal services to The New York Legal Assistance Group’s Divorce Mediation Project.

 

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