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 divorce coach, lawyer, your 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.
Since 2012, smart women around the world have chosen SAS for Women to partner them through the challenging experience of divorce. If you are thinking about divorce or beginning the process, you’ll want to know about Annie’s Group, our live, virtual divorce support & educational group for women.
“Annie’s Group has made me feel I can choose any path and come out the other side happy & complete. The program is amazing. Knowledge truly is power.” – Maddie D., New York
I’m planning to file for divorce next month because my husband and I can no longer settle our differences, and because of this, I found out that he’s cheating on me with my best friend last week. Thanks for informing me that I can file and proceed on this ground as long as we’re not able to settle on an agreement. I think I should talk to a lawyer about this so that I’ll know if I should really file for divorce or not.
Thanks for pointing out that proper presentation of divorce papers are important in order to make the process official and civil. A friend of mine is currently reading up on family law in her state because she is seriously considering to file a divorce soon. Her spouse has been showing signs of a gambling addiction and has been getting reckless with their finances as of late so she should probably talk to a lawyer about her legal options.
I’ve been married for 17 years and I have 2 teenager boys. I’ve stopped loving my husband more than 11 years ago, I’m mentally abused and put down, I’m sad and depressed. I hate myself. I’ve asked in the past to get a divorce but he tells me he will destroy me and keep my kids. He has threatened me with divorce but doesn’t go through with it! I just want a peace of mind and I want to love myself. I’m tired of crying and taking his verbal put downs. I want to separate from him and then attempt to get a divorce.
Sandy, thank you for writing. This place you’ve been living in sounds horrible and isolating. To change things, it’s going to require your getting information and learning how to take back your power. If you’d like a free consult to learn and consider next steps, we’d be honored to speak with you. But it’s going to take action for you to schedule. Can you commit to yourself enough to learn more? Use this link: https://sasforwomen.as.me/?appointmentType=12273718
Does anyone know how to push for the rental or sale of a jointly owned property when one spouse is totally unwilling to communicate directly or through a lawyer? Must this go through a judge and can the judge order it if funds are low?
I have not been with my husband in 12 years. We have an 18 year old daughter. We both want the divorce, but I do not know how to fill out all this paperwork . Why do I have to do custody or support paperwork if she is 18? Help no one ever answers me. I don’t know what to do.
Hi, Stephanie, you don’t mention where you live. Contact your city or state legal aid service line. You can google it, call and ask for help with this question.
You can also contact Herjustice.org