Summary of New York Divorce Law

Initial considerations for Divorce

To file for divorce in New York, at least one party must be a resident of New York for a certain amount of time. The residency requirements are set forth in DRL section 230 and section 231.

The venue, or the proper county in which to file the divorce case, is the county in which either party resides. Once you know the appropriate county in which to file the case, you must then find the proper court. In New York, it is the Supreme Court, which is the name of the trial or lowest level state court. When a divorce action is filed, the Supreme Court can also decide child custody and support issues. If, however, there are family law issues, but no divorce is sought, the right court is Family Court. Each of New York's 61 counties (each borough of New York City is a separate county) has both a Supreme Court and a Family Court.

Grounds for Divorce

Grounds for divorce are the legal reasons or basis for the divorce. A person seeking a divorce must state the "grounds for the divorce" in the papers filed with the Supreme Court. In New York the fault of a party must be stated and proved, while in other states, known as no fault states, there is no such requirement.

The grounds for divorce in New York are set out in DRL section 170 and are summarized as follows:

• • Cruel and inhuman treatment;
• • Abandonment of one year or more;
• • Imprisonment of three years or more after marriage;
• • Adultery; and
• • Living apart for one year or more pursuant to a Decree of Separation or Separation Agreement.

The grounds for divorce in New York do not include: irreconcilable differences; incompatibility; no fault; or mutual consent or no communication.

Division of Property

New York is referred to as an “equitable distribution state” (as opposed to being a “community property state” as are some other states). This means that a certain type of property, “marital property,” will be distributed “equitably” among the spouses in a divorce. Other property, called separate property, is not divided between the spouses at the time of a divorce and is generally kept by the spouse who originally owned it. Take note that the word “equitable” does not necessarily mean equal or 50/50. It means that marital property will be divided in a fair or just way under the circumstances.

Marital property includes all property acquired by either spouse during the marriage prior to the commencement of any divorce or separation lawsuit, unless otherwise agreed to by the parties. Marital property also includes earning capacity from an advanced degree earned during marriage and a vested pension. Separate property remains separate. Separate property includes property acquired before the marriage; property acquired by bequest or gift from a non-spouse; compensation for personal injuries; property acquired in exchange or by increase in value of separate property; and property described as separate by written agreement of the parties.

DRL section 236.B.5.d lists the fourteen separate factors that the court will consider in the equitable distribution of marital property. They are as follows:

• (1) The income and property of each party at the time of marriage, and at the time of commencement of the action;
• (2) The duration of the marriage and the age and health of both parties;
• (3) The need of a custodial parent to occupy or own the marital residence and to use or own its household effects;
• (4) The loss of inheritance and pension rights upon dissolution of the marriage as of the date of the dissolution;
• (5) The loss of health insurance benefits upon dissolution of the marriage;
• (6) Any award of maintenance under DRL section 236.B.6;
• (7) Any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
• (8) The liquid or non-liquid character of all marital property;
• (9) The probable future financial circumstances of each party;
• (10) The impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party;
• (11) The tax consequences to each party;
• (12) The wasteful dissipation of assets by either spouse;
• (13) Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
• (14) Any other factor which the court shall expressly find to be just and proper.