Know the Laws: New York
UPDATED October 29, 2012
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.
Divorce is a legal action that ends or "dissolves" a marriage. Here are the basic steps for getting a divorce:
"Grounds" are legally acceptable reasons for a divorce. In NY, 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:
Fault-based grounds – In New York, you can file for a fault-based divorce for any of these reasons:
When you receive support while you are married, this is referred to as spousal support. Prior to starting a divorce, you can file for spousal support in family court. You may even file for it while you and your spouse are still living together if s/he is failing to support your basic needs although this may be more difficult to prove.*
Once you are divorced, 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 final maintenance, which applies once the divorce is finalized. For temporary maintenance, there are specific guidelines which lay out how much you can get. These guidelines are explained in a manual prepared by inMotion and the Brooklyn Bar Association Volunteer Lawyers Project.
In deciding whether to award you final maintenance, a judge will look at many factors. A few of the things a judge will look at are:
If you were never legally married, you will not qualify for spousal support. To read more about spousal support and maintenance/alimony in NY State, check out this easy-to-understand manual prepared by inMotion and the Brooklyn Bar Association Volunteer Lawyers Project.
* See generally, NY Fam Ct Act § 412
** NY Dom Rel Law § 236(6)
You can file for child support after getting a custody order but you don’t need a custody order to receive support as long as your children live with you more than 50% of the time. When you file for child support in family court, you probably won't begin receiving the support for many weeks. However, when a final support order is issued, you will receive a retroactive payment dating back to the date that you filed your petition so the sooner you file, the more you will receive in the end.
If you file for support, this would require that you establish paternity first if it has not been established. To read about the ways in which paternity is established, go to What are some advantages and disadvantages of getting a custody order? You should consult a domestic violence advocate and/or an attorney before doing this, because establishing paternity may give the other parent the right to visitation and/or custody of your child.
Generally, 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 very 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. To get a rough idea of how much support you may receive, you can visit AllLaw.com's NY child support calculator. However, this website only estimates the amount of support you may get.
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:
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 NY State, check out this easy-to-understand manual prepared by inMotion and the Brooklyn Bar Association Volunteer Lawyers Project.
* 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)
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 following the guidelines and using the uncontested divorce packet forms 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. You may also find “Hiring a lawyer in New York” helpful in your selection of a lawyer.
* See NY Judiciary Law § 35(8)
** NY Dom. Rel. Law § 237(a)
*** NY Dom. Rel. Law § 237(b)