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Know the Laws: New York

UPDATED April 4, 2016

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To learn more about making divorce easier for your children, you can visit The New York State Parent Education and Awareness Program's Handbook.  You can also check out the NY Courts website for more divorce information, including an informational video, divorce forms and a glossary of legal terms.

Basic info

back to topWhat is divorce?

Divorce is a legal action that ends or "dissolves" a marriage. Here are the basic steps for getting a divorce:

  • First, you must meet the residency requirements of the state (click on Am I eligible to file for divorce in New York? to learn about the residency requirements).
  • Second, you must have a “ground” (a legally acceptable reason) to end your marriage (click on What are the grounds for divorce? for more info).
  • Third, you file divorce papers and have copies served upon your spouse.
  • Fourth, your spouse can respond to the divorce papers you filed by consenting to the divorce, by "contesting" the divorce, or s/he may not respond.  If there are complex issues related custody, division of marital property/assets/debt, spousal support, etc., the divorce will often be "contested" and there will be series of court hearings where the issues will be decided either by negotiations between the parties or by the judge.  If your spouse does not disagree with anything, then s/he could sign the papers and send them back to you (known as an “uncontested divorce”).  If your spouse does not answer the divorce papers within a certain amount of time (and you can prove that s/he was properly served with the papers), you can get a divorce anyway based on your spouse defaulting.  Often times, especially with uncontested divorces, custody and child support may have already been handled in family court and can become incorporated into the divorce decree (order).

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back to topWhat are the grounds for divorce?

"Grounds" are legally acceptable reasons for a divorce.  In New York, there is a "no-fault" divorce ground and fault-based divorce grounds.

No-fault ground: You can get a "no-fault" divorce if, according to either party, the marriage has "broken down irretrievably" for a period of at least six months (in other states, the common term used is "irreconcilable differences.")  You do not have to be separated for 6 months, you just have to allege that the marriage has been completely broken down for at least the past 6 months.  Note: A judgment of divorce will not be granted under this ground until the following issues are resolved by the parties, or determined by the court and incorporated into the judgment of divorce:

  • equitable distribution (division) of marital property;
  • the payment or waiver of spousal support;
  • the payment of child support;
  • the payment of counsel and experts' fees and expenses; and
  • the custody and visitation of any minor children of the marriage.*

Fault-based grounds: In New York, you can file for a fault-based divorce for any of these reasons:

  • Cruel and Inhuman Treatment This includes physical, verbal or emotional abuse that endangers your physical or mental well being to the point that it is "unsafe or improper" for you to live with the abuser. The judge will require more than that you simply did not get along with one another. The judge will be looking for specific instances of cruelty that occurred in the last five years.
  • Abandonment – Your spouse must have abandoned you for a period of at least one year. Specific examples of abandonment by your spouse include a physical move from the home or locking you out of the home.  Also, if your spouse has refused to engage in sexual relations with you for at least one year, this can also qualify as abandonment and is known as "constructive abandonment."
  • Imprisonment for Three Consecutive Years - Your spouse must have been in prison for three or more years in a row but the sentence must have begun after your marriage. Once your spouse has been in prison for three years in a row, you can file for divorce:
    • while your spouse is still in prison; or
    • up to five years after s/he is released.
  • Adultery – You must be able to show that your spouse committed adultery during the marriage. This is usually hard to prove in court, since you need evidence from a third party - someone besides you or your spouse.**

Divorce after a legal separation agreement - A divorce after a separation agreement is another basis (ground) for a divorce. You do not have to have one of the fault-based grounds listed above.  To file for divorce, you and your spouse must either have filed a valid separation agreement (which we recommend having an attorney write up for you since there are many specific requirements that it must meet to be valid) or one spouse can file for a court ordered-judicial separation.  You also must live separate and apart for one year after the agreement or judicial order before you can be divorced.***  To understand what needs to be in a separation agreement in order for it to be considered a ground for divorce, it is best to consult a lawyer.

* NY Dom Rel Law §170(7)
** NY Dom Rel Law §170(1)-(4)
*** NY Dom Rel Law §170(5),(6)

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back to topWhat are the residency requirements to file for divorce in New York?

You may file for divorce in New York if you meet one of these residency requirements:

  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 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.*

* NY Dom Rel Law § 230

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back to topCan I get a divorce if my spouse and I still live together?

Yes, if you are filing for a fault-based divorce or under the "no-fault" option.  However, if you plan on filing a separation agreement, this requires that the parties live separate and apart for one year after entering into the agreement.  However, you should keep in mind that in many cases, starting a divorce action while living with your spouse may not only be emotionally difficult, but it may also be dangerous for you and your children if there has been domestic violence in the home.

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back to topCan I get maintenance (spousal support)?

Once you are in the process of a divorce, support is referred to as maintenance or alimony.  If you are getting separated or divorced, the supreme court can award you temporary maintenance (which lasts while the divorce case is going on) and/or post-divorce maintenance, which applies once the divorce is finalized.  For temporary maintenance, there are specific guidelines and a mathematical formula that determines how much you can get.  The New York Courts website has an online calculator to help you figure out what you may be entitled to in temporary maintenance.

For divorces that were filed on or after 1/25/16, there are also specific guidelines and a mathematical formula that determines how much you can get in post-divorce maintenance. The New York Courts website has an online calculator to help you figure out what you may be entitled to in post-divorce maintenance.

However, for both temporary and post-divorce maintenance, the judge can vary from the formulate if s/he determines that the guideline amount of maintenance is unjust or inappropriate.*  

Note: Even prior to filing for a divorce, you may be able to file for spousal support in family court while still married to your spouse.**  To read the relevant law, go to our NY Statutes page and read Family Court Act § 412.

* NY Dom Rel Law §§ 236; 236(5-a)(h); 236 (6)(c),(e)
** NY Fam Court Act § 412

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back to topIf I am granted post-divorce maintenance, for how many years can I expect to receive it?

When deciding how many years a spouse will be ordered to pay post-divorce maintenance, the judge may -- but doesn't have to -- use the following guidelines:

  • for a marriage up to and including 15 years, alimony would be paid for a time period that equals15% - 30% of the length of the marraige;
  • for a marriage of more than 15 years, up to and including 20 years, alimony would be paid for a time period that equals 30% - 40% of the length of the marraige;
  • for a marriage of more than 20 years, alimony would be paid for a time period that equals 35% - 50% of the length of the marraige.*

In addition to having the option of using these guidelines, a judge must consider 15 factors when determining the amount of time that post-divorce maintenance will be paid, such as the age/health of the parties, and the reduced/lost earning capacity of one spouse as a result of having given up or delayed education, training, employment or career opportunities during the marriage.  To read the complete list of the factors that a judge must consider, go to page 8 of the NY Courts worksheet.

* NY Dom Rel Law § 236(6)(f)

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back to topCan I get child support?

The court will determine how much money the other parent will pay to support your child.  The court almost always uses set guidelines in a child support obligation worksheet to determine how much support you will receive.  If you would like to see all of the factors that go into determining support, you can visit the NY State Child Support website.  The guidelines the court uses involve a complex formula, but basically the court looks at both parents’ incomes, your child’s needs and the custody arrangements.  Generally, whether you are the custodial parent or whether you share joint custody with the other parent will affect the amount of support you may get.  To get a rough idea of how much support you may receive, you can visit AllLaw.com's NY child support calculator.  (Note: WomensLaw is not affiliated with this website.) 

To modify a child support order after it is established, either parent would have to show that there has been a substantial change in circumstances.  Note: The paying parent's incarceration could be a reason for modification unless it is due to nonpayment of child support or a criminal offense against you or the subject child.*  An order can also be modified without a substantial change in circumstances if, since the order was entered or last modified:

  • 3 years have passed; or
  • there has been a change in either parent's gross income by 15% or more since the order was entered or modified; however, if there is a reduction in a parent's income, this will only be considered if it was involuntary and the parent has made thorough attempts to get a job that pays according to his/her education, ability, and experience.**

However, even if the court modifies the child support order, that will not reduce or erase any child support arrears (overdue payments) which have accumulated before the parent filed the modification petition.  The unpaid payments will still have to be paid.***  To read more about child support in New York State, you may want to check out this manual prepared by Her Justice and the Brooklyn Bar Association Volunteer Lawyers Project.  (Note: WomensLaw is not affiliated with those organizations.) 

* NY Fam Ct Act § 451(2)(a); NY Dom Rel Law § 236(2)(i)
** NY Fam Ct Act § 451(2)(b); NY Dom Rel Law § 236(2)(ii)
*** NY Dom Rel Law § 236(2)(iii)

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back to topDo I need a lawyer? What if I can't afford one?

It is better to have a lawyer if at all possible. If you are filing for an uncontested divorce and you believe your spouse will not disagree with anything, then you may want to file without the help of a lawyer by using the uncontested divorce do-it-yourself program available on the NY State Courts website.  

If you are asking for custody, child support, spousal support, or to divide up marital property or marital debt, you may want to hire a lawyer because these issues get quite complicated.  Also, it is important for you to find out if your spouse has a pension, retirement account, insurance or other significant property before you decide whether to file for divorce. If you do not ask for such things in the divorce, you will give them up forever.  Note: If the only "contested" issues involve custody or visitation of the children and there are no other financial issues or division of property, you might want to deal with custody and child support in family court before you file for divorce.  Those family court orders could then be incorporated into (become part of) the divorce. This may make the divorce uncontested and easier to handle. 

If you are low-income, you can get an attorney appointed for you in the divorce but only to handle the custody and visitation portion of the divorce action, not the division of property or support portions. (You could also get an attorney appointed to handle an order of protection if you file for an order of protection during the divorce).*

If you do not qualify for a free, court-appointed lawyer, or if you need a lawyer to handle issues that the court-appointed lawyer won't handle, there may be help according to the law.  The judge can order the spouse who has more money to pay the other spouse's attorney's fees and the fees and expenses of experts (such as a forensic psychologist) if this is necessary for the less-monied spouse to be adequately represented in the divorce.  The judge will assume that the richer spouse should pay the poorer spouse's attorney fees although the richer spouse can try to change the judge's mind and offer evidence to show why this should not be done.  The money would be paid during the divorce (not at the end) to your attorney directly.**  This law also applies to a court case you may have to later bring to enforce any part of the divorce or custody order that the other spouse is violating.***

Please see our NY Finding a Lawyer page for free legal services and a paid legal referral service.  If you have to hire a lawyer, go to our How do I find and choose a lawyer? page. 

* See NY Judiciary Law § 35(8)
** NY Dom. Rel. Law § 237(a)
*** NY Dom. Rel. Law § 237(b)

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