What You Must Know About Divorce in NY State

As a family law attorney building my practice, I have scanned social media posts and Facebook groups where people are seeking legal advice online. Many posts provide tons of extraneous details about their lives and divorce story, but never post what state they reside in. While there are many shared aspects to divorce laws across the country, divorce is not based on federal law. Each state has its own specifics in relation to the law.  As attorneys, we are licensed in different states. Thus, I cannot provide legal advice to someone who resides in a state that I am not licensed in. Likewise, the laws vary based on the state you live in. And the differences between various states as it relates to divorce law can be considerable.

For example, California is considered a “community property state” and the default rule for equitable distribution is that all property acquired during the marriage should be divided on a 50%-50% basis. That is not the case in New York. In New York, equitable distribution does not translate to an equal 50%-50% division of all assets acquired during the marriage. Rather, New York attempts to be fair and set up both parties for an equitable division. Personally, I prefer this to a 50%-50% division. Why should one spouse leave the marriage with a windfall after making only nominal contributions to the partnership?

Equitable distribution allows the specific circumstances of each marriage to be considered in a more holistic and fairer way. Effective attorneys can create an honest and reasonable settlement that supports both parties’ futures. It should not leave one party destitute while the other lives like a king or queen.

In New York, how do I start a divorce action?

Anyone can commence an uncontested or contested divorce action in New York State as long as at least one spouse meets the residency requirements. Residency encompasses a three-prong analysis.

1. Either you or your spouse has lived in the state for at least two years immediately leading up to the date you file for divorce;
2. Both you and your spouse live in New York at the time you file for divorce and the cause for the divorce known as “grounds” occurred in New York; or
3. Either you or your spouse has lived in New York for at least one year immediately leading up to the date you file for divorce and:
   • Your marriage took place in New York;
   • You and your spouse lived in New York during your marriage; or
   • The cause (“grounds”) for the divorce occurred in New York.

What does it take to file a divorce action in New York?

Once you meet the residency requirement, you can start a divorce action by paying a $335 filing fee. This covers the index number and Note of Issue. Next, file a Summons with Notice or a Summons with Complaint in the Supreme Court of the New York county where either spouse lives. After filing, you must “serve” your spouse with the papers to notify them that you have started a divorce action.

Read “What Happens After You Serve Your Spouse Divorce Papers?”

You will also need to submit to the court proof of service in what is commonly known as an affidavit or affirmation of service.

Pro-tip: File in the county that you reside in to make the process more convenient for you, especially if your case is contested and you will have to make multiple court appearances before a Judge.) Some litigants (mostly wealthy ones) have attempted to file where their vacation home is located or where the other spouse now resides rather than in Manhattan in hopes of having a more favorable strategic outcome for themselves. But this is often considered “forum shopping”, and New York Courts have gotten more attuned to preventing it.

What is considered a “long-term” marriage? Why is that important? 

The length of the marriage is measured from the wedding date to the date one spouse files for divorce. This is commonly called the “commencement date.” Everything acquired between those dates is generally considered marital property unless a signed and notarized prenuptial or postnuptial agreement says otherwise.

Read “The Top 7 Things to Know About Postnuptial Agreements”.

In New York, like most states, the duration of the marriage is important because the longer the parties have been married, the more emmeshed their lives and finances will likely be. New York will consider a longer-term marriage as one where both parties are entitled to more in equitable distribution of assets and debts.

The less monied spouse will also usually be entitled to more in spousal maintenance based on the duration of the marriage. Also, if you had children during the marriage, child support and add-on expenses are also on the table. New York has statutory spousal maintenance guidelines. This is a calculation based on both parties’ earnings. Regarding the duration of the marriage, spousal maintenance (read “What is Alimony?”) for a “short-term marriage” is typically considered to be anywhere from 0 to 15 years. This means that the maintenance duration is typically 15%-30% of the length of the marriage. For marriages lasting more than 15 years and up to 20 years, spousal maintenance typically ranges from 30% to 40% of the marriage length. For marriages lasting more than 20 years, the range is typically 35% to 50%.

This makes logical sense because the longer you were married, the longer spousal maintenance SHOULD be paid out to you!

Is NY State seen as favorable toward SAHMs or women?

I think it is dangerous to generalize here.

As most things in the law, it is case-specific. It is dependent on the duration of the marriage, the facts of your marriage, and what county you reside in. It may also be dependent on the mood of a judge on any given day.

If you were a stay-at-home mom (SAHM) for many years, you may qualify for a longer period of spousal maintenance. This may especially apply if you need additional education or skills to become financially self-sufficient. You may also receive a more generous award if you raised the children and supported your spouse’s career. Health issues or a disability that could limit your future ability to work may also affect the Court’s decision.

Typically, New York County and Kings County are known to be more generous with SAHM fact patterns. However, courts in more rural and less affluent New York counties may award less spousal maintenance. They may also be less accustomed to the complex financial situations often seen in Manhattan, Brooklyn, and Westchester County. That does not mean that they won’t provide spousal maintenance. But it may be less in amount and duration than the more affluent parts of Manhattan, Brooklyn and Westchester. The best way to figure this out is if you have a contested divorce to research the specific judge who you have been assigned.

Pro-tip: It is a good idea to pull prior divorce decisions from Westlaw, Lexis Nexis or the internet to see how your judge has ruled for other litigants with similar fact patterns previously.

How does New York State rank compared to other states in terms of the number of divorces each year?

Demographic studies are updated annually and remain in constant flux. But from recent studies that I have reviewed, New York ranks towards the lower half of the number of divorces in the United States. Many Southern and Midwestern states seem to be polling on the high end of the divorce rate. It is also notable that West Virginia keeps ranking as a top ten state for divorce over the past several years. In my opinion, more studies should be conducted to explore these trends. I suspect that states known to be more demographically challenged financially seem to have higher rates of divorce. This makes perfect sense to me because finances play a key reason in why many Americans do end up pulling the plug on their marriage.

Do you have any unique New York State insights that you might want to share?

Despite New York City being considered a predominantly blue bastion, New York State was actually the very last state in the entire country to codify “no-fault” divorce. It still boggles my mind that many conservative Southern and Midwestern states accepted no-fault divorce before New York did. No-fault divorce revolutionized, streamlined and expedited the divorce process. For most Americans, this is a very good thing!

What stands out to you as a divorce lawyer?

While divorce is less stigmatized than it used to be, many women still attach a huge amount of their identify as a “wife” and “mother.”

In my opinion, that is wonderful. But it is not enough.

You really need to ALSO build a life outside of your marriage. Because it is that other life that will help you when you need to re-build. You need your family, friends, networks, community, faith, job and profession to weather the transition process and to get you to the other side post-divorce. 

The women who have access to those resources and support are the ones who usually do better at the end of the day with the divorce process. A large part of that is because their entire identity has not been eroded based on their relationship status.

As a NY divorce attorney, what do you recommend women to do?

As a New York State attorney, I strongly encourage women to learn about the divorce process as early as possible. Information is power. You do not want to start educating yourself only after someone serves you with a Summons and Complaint for Divorce. At that point, you are already on the defensive and playing “catch-up.”

When you are thinking about divorce, it is worth spending the money for a legal consultation to educate yourself about the law. You need to know what you are legally entitled to and what your obligations may be in a divorce.

That doesn’t necessarily mean that you need to retain an attorney, but Google and AI are not going to be able to answer your questions as accurately as an attorney will.

Lawyers can also share their experience with specific counties, judges, or referees who may handle your case if it becomes contested. This can give you a better sense of what your potential outcome in Court might be. The short answer is get educated first.

NOTES

About Meredith: A zealous advocate for her clients, Meredith L. Singer is an experienced NYC divorce attorney who strives to keep legal representation affordable and accessible.

If you live in New York City or Brooklyn, schedule your legal consultation with Meredith by emailing her at meredithsingerlaw@gmail.com

You can also visit her website here.

 

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*We support same-sex marriages. For the sake of simplicity in this article, however, we refer to your spouse as your “husband” or a “he.”