Divorce Laws in New York

Divorce Laws in New York: What You Need to Know

In New York, a marriage can end through an annulment, legal separation or a divorce. New York has been a no-fault state since 2010, meaning that a couple only need cite that a marriage is irretrievably broken to end a marriage.

However, a spouse can also cite one of several at-fault reasons as well, such as cruelty, adultery, or a spouse’s incarceration. This is sometimes done to gain more favorable terms during a settlement.

As an equitable distribution state, the courts will attempt to distribute assets in a marriage in a fair and equitable way, but this does not necessarily mean that the split will be 50-50.

There are several rules governing the division of assets that can impact the final outcome in many possible ways. Here are some of the other common legal questions and major issues that come up during a divorce in New York:

• Property Issues
• Spousal Maintenance and Child Support
• Custody and Visitation
• Divorce Process
• Other Divorce Issues

Property Issues

Marital Property and Division of Assets in New York

New York is an equitable division state. Unlike community property states where all marital property is divided equally, in New York each spouse owns the income he or she made during a marriage.

They also have the right to manage any property that is in their name alone. While this will carry some weight in a divorce, it is not the only factor that determines an equitable division of assets.

A judge will take many factors into consideration when attempting to create a fair distribution of assets in a divorce. Some of these factors may include:

• the age and health of each spouse
• how long the marriage lasted
• the income and property each spouse brought into the marriage
• whether alimony will be awarded
• financial requirements for the custodial parent if children are involved
• what the possible future needs of each spouse will be following the divorce
• if a spouse wasted marital assets during the marriage
• if a spouse hid or encumbered assets knowing a divorce was about to happen
• the liquidity of the marital property
• pension, health insurance and inheritance rights

Businesses are also considered marital property, but may be difficult to divide, although still subject to equitable distribution. In cases such as this, it may be possible to award the business to the spouse who is more involved in the business and make up the difference with other marital property going to the spouse.

Any property acquired through inheritance during a marriage is considered separate property. However, if the property is commingled then it may become a part of the equitable division equation. For example, if both people live in an inherited house and both contribute to the upkeep of the house, then it may be not be considered separate property.

If you want to retain sole possession as the owner, it is important to make sure you do not commingle the property, either by depositing money in a joint bank account, or adding your spouse to the deed on a house, or in other similar instances. You may also draw up a post-nuptial agreement that states you retain sole ownership of an asset in all instances.

Read More: Who Gets the House in a Divorce?

Debts

In New York, the courts consider any debt acquired during a marriage as the responsibility of both parties, even if it is only one party that was responsible for accruing the debt.

It may be possible when settling assets for one spouse to take control of a larger part of a debt in exchange for other considerations. When the divorce is final, if a spouse has chosen this route, they are individually responsible for making sure payments are made to comply with the court order.

However, if a spouse can’t make payments or refuses to pay, the nonpayment of the debt will affect both spouse’s credit scores. When nonpayment becomes an issue, a spouse can request that the payments be enforced by seeking relief in court. This can result in contempt charges against the spouse in noncompliance.

Gifts

Assets that were given to one spouse during a marriage that were considered a gift are considered marital property by default, unless you can show that the gift was explicitly given to you alone and that it is not marital property. The best way to do this is to have a document created when the gift is given stating this fact and then have it notarized.

The gift will need to be reflected on both the donor and the recipient’s tax return. The gift must also remain only in the name of the person who received the gift. And if the gift is real estate or something that requires upkeep or payments in any form, then those expenses should be paid from a separate account and not those contained in any marital account.

Inherited Property

New York laws state that property inherited by one spouse during a marriage is separate and not subject to community property rules.

Ownership of inherited property can be invalidated if the person who inherited the asset commingles it with marital assets. For example, inherited monetary assets that are placed in a joint bank account could cause the inheritor to lose their sole interest.

Also, if you inherit a home but both you and your spouse move into the home, it could be considered community property. If you do commingle assets, you can attempt to show what part of the commingled asset is representative of the inheritance you received by showing exactly what you put into the account, then you can preserve your separate value.

You should keep inherited assets separate in there is a possibility of divorce in the future.

Pensions, IRAs, 401Ks and Retirement Plans

All pensions, IRAs, 401Ks and retirement plans are treated as marital property in New York. This means they are subject to the state’s equitable distribution laws and are divided by what is known as the Majauskas Formula, named after a landmark court case known as Majauskas vs. Majauskas.

Courts have the right to modify this formula or can use other methods to distribute pension and retirement benefits. This can include awarding a flat dollar amount that will not change even if one spouse’s retirement rises significantly prior to retirement. A share of retirement funds can also be calculated based on final salary and service credits as of a specific date, which is usually the commencement of the divorce date.

Legally splitting pensions and other retirement funds is a multiple step process. After the divorce decree has been issued, an attorney or a specialized firm must create a qualified domestic relations order, more commonly referred to as a QDRO.

The QDRO must be approved by the courts and then it can be submitted to the plan administrator who must also approve it. This establishes that a spouse can be considered an alternate payee, and the retirement vehicle is then divided according to the specifics contained in the QDRO.

Separate Property

In New York, all property and all debt accumulated during the marriage belongs to both spouses. Any property that is considered separate property is not divided during a divorce. Each spouse gets to keep his or her own separate property which includes:

• Assets acquired before the marriage
• Assets an individual spouse received as inheritance or as a gift, except from the other spouse
• Payments for any personal injury settlements
• Any property identified as separate property that is noted in a pre-nuptial agreement or a post-nuptial agreement
• Property acquired from the appreciation of a separate property, unless it can be shown that the other spouse contributed to the appreciation of that separate property.

But there are exceptions when it comes to separate property.

Although inheritance acquired during a marriage is considered separate property, if the assets of the inheritance are commingled (i.e. in a bank account, or if both people live in an inherited residence), then it may be possible to claim that the inherited assets have become marital property. In cases where a home was bought before two people married, if both people live in the home during the marriage and both contribute to mortgage payments, then the case can be made that the house is no longer separate property, but community property instead.

Spousal Maintenance and Child Support

Spousal Maintenance in New York

Laws changed in 2015 that created a presumptive formula to determine how much spousal maintenance one spouse should pay another. These amounts and time periods are presumed to be correct unless evidence can be presented to show why those variables should be changed. The court does have the discretion to order different amounts based on explanations in may be given.

Temporary support is ordered to paid to an ex-spouse while a divorce case is pending and is ordered as part of proceedings in Supreme Court. Spousal maintenance is ordered by the Supreme Court as part of the divorce, but the Family Court will have the jurisdiction to modify or enforce the order after the divorce is finalized.

For a marriage up to 15 years, maintenance will last for 15% to 30% of the length of the marriage. For marriages lasting 15 to 20 years, maintenance will last 30% to 40% of the length of the marriage. For marriages lasting more than 20 years, maintenance will last 35% to 50% of the length of the marriage.

Courts can adjust spousal maintenance based on a number of factors. Some of those include:

• The length of the marriage
• The earning capacity of each spouse
• The needs and standard of living of each spouse
• Age and health of both spouses
• Existing debts and assets
• Child custody arrangements and whether or not the primary care spouse can hold a job while taking care of the children
• Did one spouse help the other with education, career training or other ways to assist them in advancing their career
• Will a spouse have trouble finding work based on age or absence from the workforce
• Tax consequences of each spouse
• The loss and availability of health insurance

Child Support in New York

There are several factors that impact how child support is determined in New York. Specific child support guidelines in state statutes are used to determine exact amounts, unless there are reasons to support that the amount would be unjust or inappropriate. Those reasons may include:

• the financial resources of the child and the parents
• the standard of living the child would have enjoyed if the marriage had not been dissolved
• the physical and emotional health of the child and any special needs or aptitudes of the child
• the financial resources, needs, and obligations of both the noncustodial and the custodial parent
• the tax consequences to each parent
• the non-monetary contributions that the parents will make towards the care and well-being of the child
• the educational needs of either parent
• whether one parent’s income is substantially less than the other parent
• the needs of other children of the non-custodial parent
• if the child does not receive public aid, any extraordinary expenses required for the non-custodial parent to exercise visitation rights
• and any other relevant factors.

In addition to paying monthly child support, both parents will be responsible for other expenses such as healthcare, childcare, education and other related expenses that may not take place every month. Courts can adjust state formulas up or down depending on these costs or if the state formula will impact the non-custodial parent’s income too much.

If a parent misses a payment, the other parent can file a violation in Family Court. At a hearing, the court will decide if nonpayment was willful or nonwillful and then decide if a money judgment should be awarded. In some cases, a willful violation may result in a parent be put in jail for up to six months.

Custody and Visitation

Child Custody in New York

Most states, including New York, follow guidelines laid out in the Uniform Child Custody Jurisdiction and Enforcement Act. As part of the divorce process, a Custody Order will be issued that will dictate the responsibility for a child’s care. The order defines two types of custody in New York: legal custody and physical custody.

Legal custody means that a parent has the right to make important decisions about how the child is raised and cared for, including religious upbringing, medical care and other similar issues. A judge may choose to grant joint legal custody and when this happens both parents make these kinds of decisions for the child together. If the judge grants sole legal custody to one parent, then that parent is the only one responsible for making important life decisions for the child.

Physical custody defines which parent the child lives with. It is also known as residential custody and dictates who is responsible for the day-to-day physical care and supervision of a child. A judge may choose to grant joint physical custody in which case the child will live with each parent an equal amount of time. In cases where sole physical custody is granted, the child will live with one parent a majority of the time and the other parent will be grant visitation rights.

Courts can make custody orders for children only until the child turns 18 years old. In all instances, custody orders are based on what is known as “the best interests of the child” standard. Courts will take a number of things into consideration when trying to determine the best option for child custody. This will include things such as each parent’s ability to care for the child, mental health, substance abuse, domestic violence or criminal activity issues, each parent’s work schedules, the social, educational, medical and religious needs of the child, and when children are older, what their personal desires are.

New York is one of the few states that recognizes the right for grandparents and other nonparents such as siblings, aunts and uncles to petition the court for visitation rights as well. The process for petitioning for visitation rights are pretty much the same as when a parent petitions a court for visitation rights.

Substance Abuse

New York is a no-fault state and you only need to state that a marriage is irretrievably broken to file for divorce. However, you can also file for divorce stating reasons for the divorce. Although substance abuse is not explicating one of the reasons that can be cited, if it can be proved that one spouse had a drug or alcohol problem, this fact may be able to be linked to one of the at-fault reasons, such as cruel treatment or possibly abandonment.

Where substance abuse carries more weight is in discussions regarding child custody. A court will not allow a parent to take custody of a child if there is a danger to the child, as there would be with drug or alcohol abuse being present.

Substance abuse can also have an impact on a division of assets in New York. If it can be shown that a spouse spent considerable marital assets to feed their habit, a judge may be inclined to award the other spouse more assets to make up for the difference.

It is important to document the presence of substance abuse in a marriage if it will be used as a factor in a divorce. This can be done by testing, testimony from family members or from representatives of social services agencies, or other witnesses who can provide first-hand information and insights.

Process

Bifurcation of marital status

Bifurcation means that both parties in a divorce can legally declared as a single person while the other issues in their divorce are still being worked out. It does not affect things such as child custody, visitation, child support, alimony or other contentious issues that may have stalled or become major sticking points that are keeping the divorce from being finalized.

Bifurcation of marital status is generally not granted in New York except for compelling reasons. Part of the reason bifurcation is frowned upon is that it can result in two trials instead of one and it also removes any sense of urgency in resolving economic issues because incentives for settlements are removed. Couples must consider that they will have to pay court costs and attorneys’ fees for two trials instead of one when considering a bifurcation action.

Disclosing Assets

In New York, each spouse must disclose to the other the amount and type of assets they have so that there can be an equitable division of those assets as part of the final divorce decree. Accurate and complete disclosures are essential to making sure there is a fair division of assets. In addition, financial disclosures are also used to gauge the financial health of each spouse and will help to determine if spousal maintenance is required and what amount of child support should be awarded.

A Statement of Net Worth is one of the documents that must be submitted which includes detailed descriptions of income, expenses, assets, debts, business interests, loans and other related information. Financial disclosures may also be obtained as part of a discovery process and can be used to verify the nature and extent of the assets in a marriage. In some cases, it may be necessary to subpoena information directly from financial institutions to get the information needed.

If you submit a disclosure but later determine that you inadvertently left out an asset, you can file an amended disclosure. Doing this before a court judgment regarding assets is determined is much easier than attempting to do it after a judgment is rendered.

Learn: How to Find Hidden Assets in a Divorce (Expert Advice)

Spouse’s Default

When one person files for divorce in New York, they must make sure that the other spouse is served with a Complaint for Divorce and a Summons. In response, the other spouse has 20 days to respond from the date they were served, or 30 days if they live out of state.

If the spouse does not respond within that timeframe, then the spouse who filed the complaint can ask the court for a default judgment 45 days after the Complaint and Summons were served.

When a spouse does not respond, they forfeit their right to contest any terms of the divorce, including important issues such as child custody, support, alimony and a division of assets and debts. Failure to respond could have serious implications because one spouse could get stuck paying more than they should for support or for debts that were not theirs

Other Issues

Domestic Violence

In divorces where domestic violence is present, any divorce actions are secondary to the immediate safety of a spouse or children who may be in immediate danger.

Domestic violence can include any kind of physical abuse, emotional abuse, stalking, or any other kind of harassment including those made through phone calls, mail, or social media inflicted on one spouse by the other.

Law enforcement has strong safeguards against domestic violence and when it is present in a marriage, the first goal is for a spouse to take steps to make sure they are safe above all else. This means the first thing a spouse must do is leave the residence where the abuser is living and if the threat is imminent, call the police.

By itself, domestic violence cannot be stated as a reason for divorce, but because New York is now a no-fault state, just stating a marriage is irretrievably broken is enough to end a marriage. Domestic violence becomes a much more prominent issue when dealing with the issue of child custody.

If domestic violence can be documented, then the abuser may not be allowed any custody privileges, because courts always put the best interests of children first when it comes to all issues in a divorce. In other cases, visitation may be granted, but under strict supervision and on a limited basis.

Health Insurance

When a person files for divorce in New York, an automatic order is put in place that prevents either spouse from changing insurance coverage unless they get permission from the court.

After a divorce is granted, a spouse may no longer remain on the other’s health insurance plan and they must seek out their own healthcare coverage. As part of a settlement, a judge may order one spouse to pay for the other’s health insurance.

You can also apply for COBRA benefits which is a law that protects people from losing health coverage during major life transitions. It allows you to continue with your spouse’s current coverage for up to 18 months as long as you pay the premiums.

Infidelity and Adultery

Infidelity and adultery takes place when a spouse has sex voluntarily with someone other than their spouse while they are still married.

Prior to 2010, this was one of the reasons that could be cited for getting a divorce in New York. However, the law changed, and New York is now considered a no-fault state which means that a couple can get a divorce for no other reason than by claiming that there is an irretrievable breakdown in the marriage. An irretrievable breakdown means that the marriage cannot be repaired or salvaged.

Some spouses will still claim a reason for divorce in New York which can also include cruel and inhuman treatment, abandonment for one year or more, or one spouse being incarcerated for three or more years following the marriage. By doing so, a spouse will hope to gain a more favorable advantage regarding settlement terms which can include alimony, child support or a division of assets.

Military Divorces in New York

Your or your spouse must be either live in New York or be stationed in the state to meet residence requirements under the laws governing military personnel who are seeking a divorce.

The grounds for a military divorce are the same as they are for a civilian divorce. You can either claim that a marriage is irretrievably broken, or you can cite more specific faults for seeking a divorce. These can include adultery, cruel and inhuman treatment, abandonment for one year or more, or one spouse being incarcerated for three or more years following the marriage.

Once paperwork has been filed to begin a divorce, copies must be served on a spouse to give him or her a chance to respond. When that spouse is in the military, they have certain protections afforded to them by the Servicemembers Civil Relief Act. This allows them to postpone the divorce while they are overseas or otherwise not able to adequately respond to the petition due to military service commitments.

The Servicemembers Civil Relief Act eases many legal and financial burdens of military personnel and their families who face the added challenges of active duty. A service member may choose to waive delaying the divorce by signing off on paperwork which will then allow the divorce to proceed uncontested.

In addition to New York property division laws, the federal government also protects military personnel through the Uniformed Services Former Spouses Protection Act that governs how military benefits are calculated when a divorce takes place. Federal laws will not allow a military members retirement to be distributed to a spouse unless the couple has been married for 10 years or more while the service member was on active duty.

Child support and spousal support are determined by state guidelines, but federal law dictates that child and spousal support awards may not exceed 60% of a servicemember’s pay and allowances if they are single. That amount drops to 50% if the soldier remarries and has a new family that they must support.

Read: Laws Governing Military Divorces

Looking for more advice about divorce? Here are a few of our favorite resources:

• 101 Financial Pitfalls of Divorce
• What is a Certified Divorce Financial Analyst? (and why you need one)
• How to Protect and Rebuild Your Credit in a Divorce
• How to Value the House and Split Home Equity in a Divorce