New York Divorce Law
Divorce is the legal and socially sanctioned separation of married partners, often including discussions of issues like alimony, child custody, property division and debt allocation.
Before filing for divorce, it’s essential to understand the difference between separate and community property. Separate property refers to anything each spouse earned or acquired after the day they separated while community property refers to everything else.
Grounds for Divorce
There are various grounds for divorce that can be utilized, but two of the most frequently employed are irreconcilable differences and desertion. Irreconcilable differences is probably the most popular form of justification as it simply states that marriage has broken down beyond repair and any attempts at reconciliation would harm either party involved or their children. To use this ground legally in New York state, both spouses must live separately for at least a year under an agreement or court-issued decree of separation agreement and must agree on what is in both of their best interests, plus be able to provide evidence.
As well as irreconcilable differences, fault-based grounds for divorce may also include actions that go against marriage, such as adultery. Here, the Petitioner must show evidence of sexual intercourse between their Respondent and someone of the opposite sex; those alleging adultery against another must provide physical proof.
Domestic violence, extreme cruelty and separation are other grounds for divorce that rely on fault. When alleging domestic violence, either party must provide evidence of long-term physical or emotional abuse as well as any extreme cruelty behaviors which put their life, safety or wellbeing in jeopardy – making it impossible to continue the marriage.
Care, control, and maintenance of children are among the most pressing matters a court must decide during any divorce. State laws typically grant biological parents primary decision-making authority regarding their upbringing of their child, such as where to live, religion practiced or medical decisions made for him/her. However, in cases where biological parents cannot agree on how best to raise their child(ren), or one parent believes another is unsuitable in doing so, family courts will make custody arrangements.
Courts tend to prefer joint or shared physical custody arrangements. Studies have demonstrated that children flourish under these kinds of arrangements, which give both parents an ample amount of time with their child(ren). Judges frequently award schedules alternating weeks, months, or even longer periods.
Custody decisions typically contain provisions regarding visitation or contact between noncustodial parents and the children, as well as child support payments from those without custody. Child support payments generally continue until an emancipated adult can legally work and live on their own.
Domestic violence may arise during divorce proceedings and, when this is the case, judges must ensure their children’s safety before making custody decisions. If abuse can be documented and no visitation or custody rights granted to either parent. When this is the case, an abused spouse can request temporary (also known as pendente lite) support orders from the court – this type of support acts similarly to spousal support with its amount and duration being decided case-by-case.
Child support is money that one parent pays to the other parent as part of their parental responsibility for raising their children. Its purpose is to cover expenses related to food, shelter, clothing and health care – although its exact amount depends on both parties’ annual income. A court may also take other factors into consideration in deciding an equitable amount.
In some instances, courts will include a cost-of-living adjustment into child support orders to keep up with inflation; this helps avoid having to request modifications due to cost changes.
Note that no parent may use a divorce to “punish” another by withholding contact or visitation rights; such conduct would violate their legal rights and obligations, and child support payments shouldn’t be withheld as punishment for visitation rights being exercised by one of the parents.
Once a petition for child support is filed in Family Court, a Support Magistrate will convene a hearing before hearing evidence about both parties’ incomes and expenses.
The Support Magistrate will decide if and how much child support must be issued by noncustodial parents, and also make decisions regarding spousal maintenance (formerly alimony), which the court awards after divorce to give that spouse economic independence after separation or divorce.
Property division can be one of the most contentious aspects of divorce law. While state rules on this topic differ depending on your location, judges in New York take many factors into consideration when making decisions regarding property allocation decisions. Consulting an experienced divorce lawyer will help ensure your understanding of this complex area of law applies in your situation.
First step of property division is identifying all assets and debts on the date of separation, such as real estate, bank accounts, investments and retirement accounts, personal property such as vehicles, artwork and businesses, debts owed from prior relationships as well as loans, credit card balances or any other financial obligations that exist at that point. Both spouses should disclose any income they earned or owed during marriage along with loans, credit card balances or any other financial obligations they might owe as part of this process.
Community property states generally divide all income and assets acquired during a marriage evenly in divorce proceedings; equitable distribution states aim to achieve an equitable split based on set guidelines or criteria.
Courts typically consider several factors when evaluating divorce cases, such as each spouse’s future earning potential and whether or not there are children of their marriage, how long it has lasted and what contributions each has made towards running or supporting another’s business or career. They may also take into account issues like property management skills as well as any evidence of financial misconduct committed by either partner.
Separate property refers to any asset you owned before getting married or received as a gift from someone other than your spouse. Your attorney can help you understand the differences between separate and marital property, which will have an impactful impact on your settlement agreement. Separate property remains yours unless it was combined or combined together with marital assets in any way – for instance putting together funds into one savings account which contained both separate and marital funds can convert it to part of your marital estate estate.
Alimony (also referred to as spousal support and maintenance) serves to prevent divorce from resulting in an abrupt decline of one spouse’s quality of life, typically after there has been an imbalance in earning power between partners. Payment of this sort typically continues until one partner can become self-supporting again.
States often have specific rules on whether and when to award alimony payments; others allow judges to decide according to circumstances and situations, often awarding more if the marriage lasted long-term; courts also take into consideration factors such as assets owned by both parties, their level of involvement in business operations and other factors in making their decision.
In certain instances, courts will order that an outright lump sum payment of money be given instead of periodic alimony payments. This can be appropriate in cases in which neither spouse desires any property from their marital estate. Reimbursement alimony may also be awarded in order to cover expenses such as tuition for school or the cost of training needed for a new career path; while rehabilitative alimony will generally help one spouse overcome a medical condition or temporary circumstance that has prevented him or her from finding work.
Those in disagreement regarding financial arrangements during their divorce can attempt to come to an agreement outside of court using divorce mediation – a form of settlement negotiation guided by an impartial third-party and could prove beneficial for all involved. If no settlement can be achieved during mediation, however, a judge will make his or her ruling at trial.