New York Divorce Law Principles

Divorce Grounds

There are seven grounds for a divorce in New York State. These are:

1. Irretrievable breakdown in relationship for a period of at least 6 months. This ground is usually called a “no-fault” ground. The marriage must be over for at least 6 months, and all economic issues, including debt, how the marital property will be divided, and custody and support of the children must have been settled.
2. Cruel and inhuman treatment. This requires specific acts of cruelty that happened in the previous five years. The cruelty must rise to the level that the plaintiff is physically or mentally in danger and it is unsafe or improper for the plaintiff to continue living with the defendant.
3. Abandonment of the plaintiff for at least one year or more. Two examples of abandonment are: (a) the spouse physically leaves the home without any intention of returning and (b) the spouse refuses to have sex with the other spouse, which is called “constructive” abandonment.
4. Imprisonment for at least three years.
5. This ground can be hard to prove because evidence from someone besides the plaintiff and spouse is needed.
6. Divorce after a legal separation agreement. To use this ground, the parties must sign and file a valid separation agreement and live apart for one year. The separation agreement must have specific requirements included to be valid.
7. Divorce after a judgment of separation.

 

Divorce Jurisdiction

An action for divorce or separation may be maintained in New York only when:

1. The parties were married in the state and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or
2. The parties have resided in this state as husband and wife and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or
3. The cause occurred in the state and either party has been a resident thereof for a continuous period of at least one year immediately preceding the commencement of the action, or
4. The cause occurred in the state and both parties are residents thereof at the time of the commencement of the action, or
5. Either party has been a resident of the state for a continuous period of at least two years immediately preceding the commencement of the action.

Notwithstanding the apparently clear language of the statute that requires “residence” in New York, the courts have held that that term requires courts to uphold jurisdiction if the requisite period of either residency or of domicile has been established. “Domicile” is a person’s fixed and permanent home to which they always intend to return.

 

Jurisdiction as to Financial Issues

In order for the courts of any U.S. state to have the power to determine the financial consequences of a divorce they must have personal jurisdiction over the defendant. The basic rules for obtaining personal jurisdiction in non-family law cases generally apply to matrimonial actions.

Accordingly, a New York court has personal jurisdiction over a defendant for purposes of a divorce case if:

1. The defendant has sufficient minimum contacts with New York so that “traditional notions of fair play and substantial justice” are not offended; or
2. The defendant is served with process while physically in the State of New York, except that if a nonresident defendant has been enticed into the jurisdiction by fraud and deceit for the purpose of obtaining service upon him, the service thereby effectuated will be vacated. ; or
3. The defendant voluntarily appears and waives the jurisdictional objection by failing to raise it in the prescribed manner.

 

Equitable Distribution

Upon a divorce in New York, and provided there is personal jurisdiction over the defendant, the court will normally make an “equitable distribution” of the parties’ “marital property.”  Marital property consists of all assets acquired by either or both of the parties in the course of their marriage, regardless of whose name is on the title. It also includes any increase in the value of property during the marriage if the increase has resulted from the activities of either or both of the parties during the marriage. Marital property does not include assets owned separately by either spouse before the marriage, or assets that are received by a party during the marriage as a gift or by inheritance. However, separate property that is “commingled” with marital property may be treated as having become marital property.

The division of marital property upon a divorce is based upon a determination of what is “equitable,” which does not necessarily mean equal.  In dividing marital property, New York judges will consider such factors as:

• Each spouse’s income and property before, during and after the marriage.
• The duration of marriage.
• Each spouse’s age and health.
• Any loss of health insurance benefits upon dissolution of the marriage.
• Each spouse’s contribution to the marriage. If one spouse stayed at home to take care of the family, the court will consider that the same as monetary contribution.
• Which spouse was awarded custody of the children.
• Whether a spouse was granted spousal maintenance.
• The liquidity of marital property.
• The probable future financial circumstances of each party.
• The tax consequences.
• The wasteful dissipation of assets by one spouse.
• Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration.

 

Child Custody

See the accompanying article, International Child Custody Law in the United States.

 

Child Support

Under New York State law, both parents must financially support their child until the child turns 21 years old. Child support also includes providing health insurance coverage until the child turns 21 years old.

In general, the custodial parent can get child support from the other parent, the non-custodial parent. The custodial parent is the parent who has physical custody of the child. This means that the child lives with this parent most of the time.

Pursuant to the Child Support Standards Act, the “basic child support obligation” is based on a strict formula which is based on the combined income of both parents up to a specified cap and the number of children the parents have together. The court may base child support on income in excess of the statutory cap, based on a variety of factors including the children’s basic needs. Child support can also include additional sums for education and child care.

Spousal Maintenance

Maintenance while a divorce case is pending and maintenance after a divorce case is concluded are governed primarily by guideline formulas concerning the amount of the maintenance and the duration of the maintenance that are set out in sections 236B(5-a) and 236B(6) of the Domestic Relations Law. The courts have a discretion to deviate from the “guideline” awards determined by the guidelines upon consideration of factors such as the age and health of the parties, the present and future earning capacity of the parties, any wasteful dissipation of marital property, and the standard of living established during the marriage.

 

The Law Office of Jeremy D. Morley handles divorce cases in New York and New Jersey and with local counsel throughout the U.S. and globally. We usually commence our matters with a consultation. Most consultations are by telephone, since our clients are all over the world. To set up a consultation call Mark at 1-212-372-3425 or email [email protected]