New York Domestic Relations & Matrimonial Law FAQ

Q: What Do I Need to Prove to Get a Divorce?

A: To get a divorce in New York, you need to prove that you and your spouse entered into a valid marriage and that marital relations cannot be sustained due to circumstances that constitute a legal ground for divorce. In New York, you can assert either fault-based divorce grounds or no-fault divorce grounds. If you were married in another state, New York law recognizes the validity of your marriage. However, there may be some residency requirements before you can file for divorce. Please consult an attorney to determine what requirements apply to your case.

Q: What Are Fault-Based Divorce Grounds in New York?

A: There are four fault-based divorce grounds in New York. A fault-based divorce requires you to prove that your spouse engaged in some wrongful act or misconduct.

New York’s fault-based divorce grounds include:

• Cruel and inhuman treatment: If you were the victim of cruel and inhuman treatment, you can get a divorce. Cruel and inhuman treatment includes physical and mental abuse.
• Abandonment: If your spouse left you with no intention of returning and you were separated for at least one year, you may get a divorce.
• Imprisonment: If your spouse has served one year in prison as part of a three-year prison sentence, a court will grant you a divorce.
• Adultery: If your spouse had an extramarital affair involving sexual relations, you can get a divorce.

Q: Does New York Recognize No-Fault Divorce?

A: There are three no-fault divorce grounds in New York. Two of these grounds are known as “conversion” grounds because the court converts a period of legal separation into a divorce. Although the underlying separation may involve a fault-based ground, converting it into a divorce does not require proof of fault.

New York’s two no-fault conversion grounds are:

• Separation pursuant to a court judgment: You and your spouse must have been continuously living apart for one or more years per the terms of a court-ordered separation.
• Separation pursuant to a private agreement: You and your spouse must have been living apart for one or more years continuously per the terms of a written agreement of separation.

In October of 2010, New York enacted legislation recognizing a true no-fault divorce ground:

• Irretrievable breakdown: You can get a divorce if you can demonstrate the breakdown of your marital relationship with no chance of reconciliation for at least six months.

Q: How Is Property Divided in a Divorce?

A: In New York, a court will perform an equitable distribution of marital property upon divorce. Marital property includes any asset you and your spouse acquire during your marriage. Any property you and your spouse obtained after getting married and before your separation qualifies as marital property and is subject to equitable distribution upon divorce. Equitable distribution does not necessarily imply an equal division of marital assets. Instead, courts will consider the specific circumstances of your divorce in determining a just and fair division of your marital assets.

In contrast, nonmarital property involves property that does not qualify as marital property. Therefore, property you received before getting married or after the date of your final separation will qualify as your separate nonmarital property and is not subject to equitable distribution.

Q: Do I Need a Prenup?

A: It depends. A prenuptial agreement—also known as a premarital agreement—has the potential to simplify property and financial issues for you and your prospective spouse in the future. Prenuptial agreements typically cover questions regarding the distribution of your property upon the termination of your marriage—either through death or divorce. However, prenuptial agreements can also help spouses organize their respective rights and responsibilities for other matrimonial issues.

You may want to consider getting a prenup in the following situations:

• You and your spouse have substantial assets and property
• You or your spouse have plans for starting a business
• You have a child from a previous relationship and want to establish a separate estate for them to inherit
• You or your spouse are expecting to receive a significant inheritance

Q: What Options Are There for Child Custody?

A: Custody arrangements can be divided into different categories. In New York, a parent has rights regarding the legal custody and physical custody of their child. Legal custody refers to a parent’s right to make crucial decisions on behalf of their child. Such decisions may involve the child’s school, health care, and religious or spiritual path. Conversely, physical custody refers to a parent’s right to live with their child.

Joint physical custody is an arrangement where both parents share approximately the same amount of time living with their child. Sole physical custody is an arrangement where one parent primarily lives with the child. In a sole physical custodyarrangement, the noncustodial parent might have visitation rights.

Joint legal custody involves an arrangement where both parents have the right to make important decisions on their child’s behalf and cannot do so without the other parent. In contrast, sole legal custody involves an arrangement where only one parent has the authority to make decisions for their child.

Physical custody and legal custody are independent rights. For example, an arrangement involving joint physical custody does not necessarily imply that the parents share joint legal custody. One parent may be awarded sole legal custody even though both parents share joint physical custody.

Q: How Is Child Support Determined?

A: New York law provides specific guidelines for calculating a parent’s child support obligations. Parents owe a duty to provide adequate financial support for their children. Typically, the noncustodial parent pays child support to the custodial parent. New York’s child support guidelines attempt to craft a child support award that reflects how the parents’ incomes would be allocated if they hadn’t separated. Both your income and the other parent’s incomes are combined when determining child support. The court will then fashion a child support award based on a percentage of your combined incomes, depending on how many children you have with them.

For More Answers, Reach Out to the Law Office of Tzvi Y. Hagler

If you have more questions about New York domestic relations and matrimonial law, you should call the Law Office of Tzvi Y Hagler. Backed by years of experience working with New York family law cases, Attorney Tzvi Y. Hagler has the experience and knowledge to help make sure your legal rights are adequately protected. You can count on Attorney Hagler to help you resolve your family law dispute and advocate for your best interests.