Know the Laws: New York
UPDATED March 11, 2015
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.
You may wish to ask for all or some of the things listed below. A lawyer can help you figure out what you should ask for in your particular situation.
1. Your share of the marital property
“Property” includes money, your home, car, personal items, and anything else that you own. To divide property, a judge will first determine what is “separate property” and what is “marital property.” Whatever is determined to be your “separate property,” you will be able to keep. Whatever is determined to be the abuser's "separate property," s/he will get to keep. Whatever is determined to be “marital property” will be divided between the two spouses in a fair manner but not necessarily evenly.
Separate property (or “nonmarital property”) is usually anything that either you or your spouse brought into the marriage and kept separate during the marriage. Also, some gifts that the person receives during your marriage may be considered separate property, such as an inheritance. Either party will be allowed to keep anything that is his/her separate property.
Marital property is anything earned or acquired during your marriage. This includes wages, a home, furniture, etc. You and your spouse will each get some of the marital property, but you will not necessarily each get half. In New York, a judge will divide your marital property in a way that s/he thinks is fair. This is called “equitable distribution.” In New York, a judge will consider many factors when dividing your property, including:
In a marriage, if one spouse creates a debt, such as on a credit card that you both opened together, then the other spouse is also responsible for paying it. So, if your spouse runs up a credit card, then the credit card company can come after you to pay it. Once you are separated, it is best to close any joint credit card accounts you have, so that if your spouse doesn’t pay off his debt or creates more debt, you will not be responsible.
In dividing property, a judge will also decide who is responsible to pay off the debts.
Both parents have an equal right to ask for custody or visitation in a divorce proceeding. When determining custody and visitation, the judge will consider what is in the best interest of the children.
Please see our Custody page for more information.
4. Maintenance (financial support)
“Maintenance” is money that one spouse must pay to help support the other spouse after a divorce. A judge will not award maintenance in all cases. You are less likely to be awarded maintenance if your marriage was short, you are relatively young and healthy, or if your spouse doesn’t have enough money or property to help support you. A judge will usually award maintenance for a set period of time to give the person receiving it a chance to become self-sufficient.
5. Child support
Child support refers to the money a parent must pay for the children after a divorce. The parent who lives with the children has the right to ask for child support from the other parent, as long as the children are under 21. However, child support payments may end before age 21 if the child is considered "emancipated" (meaning that s/he supports him/herself though a full-time job, s/he gets married, or s/he enters the military). The child’s need and the parent’s ability to pay determine how much support the court will order.
6. Removal of the abuser from the marital home
If your spouse abused you during your marriage, you can ask the court to remove him/her from your home.
7. Order of Protection
You may ask for an order of protection if your spouse has been abusive. Please see our Orders of Protection page for more information.
8. Other ReliefYou can also ask the court for other forms of relief such as the legal use of your pre-marriage name, health insurance coverage for yourself and your children, and the naming of your children as beneficiaries of your ex-spouse’s life insurance plan.
Divorce proceedings alone will not change your children’s last name. If you want to change their last name, you will have to file for their name change separately in court. Generally, if you want to change your children’s name, the other parent must be notified and has the right to object. For information in New York State about name changes, you can check out the Legal Assistance of Western New York website.
It is possible, however, for you to have your name changed back to your pre-marriage name through divorce proceedings.
If you filed the divorce papers and your spouse wants to contest it, then he will have to file a Notice of Appearance.
After the Notice of Appearance, there will be additional forms and documents to file, and you may have to go to court several times.
You may finalize your divorce through an out-of-court settlement or by a trial in court. It may take a year or more to get to a trial. In a trial, a judge will decide if the grounds for divorce and the things each spouse asked for are appropriate and the judge will make decisions about all of the issues raised in the divorce (division of property, custody, maintenance/alimony, etc.).
Legally, no. When you serve your spouse with the divorce summons, you will also have to include a copy of certain "automatic orders," which are binding upon the defendant immediately upon serving him/her with them. (The orders are also binding on you as well upon filing of the summons.) The automatic orders remain in effect during the entire divorce proceeding unless terminated or changed by the judge. The automatic orders include, for example, that neither spouse can hide, transfer or get rid of any property, money, or other assets that are either individual or joint property without the other spouse's consent. The only exception to this is if those types of actions are taken "in the usual course of business," for usual household expenses, or for reasonable attorney's fees in connection with the divorce.* Another automatic order says that neither spouse can remove the other spouse or children from any existing medical, hospital and dental insurance coverage.** There are many other automatic orders -- to read all of them, please go to our NY Statutes page.
* NY Dom Rel § 236(Part B)(2)(b)(1)
** NY Dom Rel § 236(Part B)(2)(b)(4)