New York State Divorce Law - DivorceTalk.net (2023)

How Can A Marriage Be Dissolved If A Spouse Has Been Missing

L.I. mom pushing to reform New York state divorce, family courts

Where your spouse is absent and missing for five years or more, you may bring a special proceeding in Supreme Court to dissolve the marriage. You must prove that your spouse has been absent for five successive years, without being known to be alive that you believe that your absent spouse is dead and that you made efforts to discover that he or she is still living, but no evidence proving otherwise was found. After the dissolution becomes final, the reappearance of your absent spouse does not revive your marriage.

No Fault Divorce In New York State

The No-Fault divorce action can help divorce couples from exhausting financial and emotional resources. Our team of compassionate attorneys can advise you on the best options for your circumstance.

In 2010, New York was the last state in the United States to enact a true no-fault divorce statute. Now, a spouse seeking a divorce in New York State may allege under oath, in a Verified Complaint, that the relationship of the spouses has broken down irretrievably for a period of at least six months.

In other states, this ground is known as irreconcilable differences. While the exact differences may vary depending on the case, in essence, this means that the spouses have not been able to get along for a six-month period.

There is no defense to this ground for no-fault divorce by the other spouse. In New York State, when one spouse seeks to be divorced on the no-fault ground, the divorce will be granted, but only after all economic issues, including spousal support, child support, equitable distribution of marital assets and liabilities, counsel fees, and expenses, and custodial issuers are resolved.

The availability of no-fault divorce in New York State did not eliminate the other grounds for divorce. They include adultery, abandonment, and cruel and inhuman treatment. While these may still be alleged, they must be proved. The expense and upheaval associated with doing so have now made these grounds for divorce rare.

How Long After A Divorce Can An Individual Remarry In New York

Aside from questions about the presence of a legally mandated waiting period in New York, divorcing individuals often inquire whether there is a legally required waiting period one must abide by before remarrying. The answer to this question is no. There is no law in New York mandating a waiting period between the finalization of divorce and remarriage. An individual can remarry in the state of New York immediately after the court has entered the official divorce verdict.

Read Also: Best Divorce Lawyer Bay Area

New York Divorce Court Considerations Table

?

1. New York Grounds for Divorce FAQ

Is New York a no-fault divorce state?

New York allows no-fault divorces, which means that a divorce is granted without establishing the fault of either spouse for causing the divorce. Grounds for a no-fault divorce in New York may be “irreconcilable differences”, or similar grounds.

Does New York allow at-fault divorces?

In addition to no-fault grounds for divorce, New York is a fault divorce state which provides the option to file for a traditional at-fault divorce. Suing for an at-fault divorce alleges that the filer’s spouse is the cause of the divorce due to engaging in one of New York’s at-fault divorce grounds, such as adultery, abuse, or insanity.

In some cases, an at-fault divorce is pursued because it can entitle the suing spouse to a greater share of marital property or even punitive alimony payments if their partner’s fault is proven. If their spouse contests these allegations, they may be challenged in court, which can lead to a lengthy and expensive legal process.

Does the state of New York allow incompatibility as grounds for divorce?

Yes, New York does allow incompatibility to be used as grounds for having a divorce.

Can you get a divorce in New York for living separate and apart?

In divorce law, “living seperate and apart” refers to married spouses who are living separate from each other, not engaging in a traditional marital relationship, and do not intend to repair the marriage.

2. New York Divorce Process FAQ

At Any Time Can A Parent Change A Minor Childs Last Name Without The Other Parents Permission During A Divorce In Ny

New York State Divorce Law - DivorceTalk.net (1)

Generally, when a request is being made to change the name of a minor child, notice is required to be given to the parents.

Under New York Law, notice of the time and place when and where the petition will be presented must be served, in like manner as a notice of motion upon an attorney in an action, upon both parents of the infant, if they be living, unless the petition be made by one of the parents, in which case notice must be served upon the other, if he or she be living, and the general guardian or guardian of the person, if there be one.

But if any of the persons, required to be given notice by this section, reside without the state, then the notice required by this section must be sent by registered mail to the last known address of the person to be served.

If it appears to the satisfaction of the court that a person required to be given notice by this section cannot be located with due diligence within the state, and that such person has no known address without the state, then the court may dispense with notice or require notice to be given to such persons and in such manner as the court thinks proper.

Recommended Reading: Divorce Attorneys In Colorado Springs

Division Of Debts In A New York Divorce

Most people consider how assets will be split when they are preparing to divorce. They usually try to think about things like who will keep the house, or if they will have a share in the pension. These are the questions that clients usually have in their minds. Often, people dont know that debts accrued during the marriage, like assets, must be divided.

Debts that are tied to an asset, such as a mortgage or loan to purchase a car, often remain with the asset. Whoever is keeping the house or the car, in this case, will be in charge of paying it off. Other unassociated or unsecured debts, like credit card debts, must be shared between the spouses and hopefully discharged as part of the divorce decree.

In most cases, marital debts are those incurred during marriage by either spouse. They also constitute equal obligations. However, there is some room for deviation if one of the spouses incurs debts that are not marital. For example, secret purchases made during extramarital activity would be a classic example. This debt will likely be the only obligation for the guilty party.

It is important to speak with an experienced divorce lawyer when dealing with matters such as the division of debts. Having a skilled attorney may be able to help the client understand their roles and responsibilities when it comes to asset division.

How Much Does A Divorce Cost In New York

Although several factors come into play in determining the overall cost for a divorce in New York, it is typical to spend thousands of dollars to complete the divorce process, especially if it is a contested divorce. If you are filing for divorce, you have to pay filing fees at the county courthouse, pay additional fees for any motion filed, attorney fees if you choose to hire a divorce attorney, and other charges for serving your spouse.

Uncontested divorces are usually less expensive than contested divorces. You can get an uncontested divorce if you and your spouse can negotiate and agree on major issues, such as who gets to retain the house. If you request the courts assistance in determining how property is divided, you will likely incur additional attorneys costs.

Before filing your divorce action, you will be required to pay filing fees including, $210 for Case Index Number, $95 for the Request for Judicial Intervention, and $30 for the Note of Issue, making a total of $335. You will be charged $45 for any motions filed and $35 for a written Stipulation of Settlement after the divorce action has started. Depending on the circumstances around your divorce, you may not need to file a motion or require a Stipulation of Settlement. To serve the initial divorce papers on your spouse, fees vary between $100 and $200.

Read Also: How Soon After Divorce Can You Remarry In Texas

Where Can I Find Additional Information About Divorce In New York

To learn more about making divorce easier for your children, you can visit The New York State Parent Education and Awareness Programs Handbook. You can also check out the NY Courts website for more divorce information, including an informational video, divorce forms and a glossary of legal terms. You will find more information about divorce, including the risks of taking your children out of state while a divorce is pending, on our general Divorce page. To watch brief videos about divorce in Spanish with English sub-titles, go to our Videos page. Lastly, learn more about the court process on our Preparing for Court By Yourself page.

You will find more information about divorce, including the risks of taking your children out of state while a divorce is pending, on our general Divorce page. To watch brief videos about divorce in Spanish with English sub-titles, go to our Videos page. Lastly, learn more about the court process on our Preparing for Court By Yourself page.

S Taken After Divorce

Should New York State get a divorce?

Thats why, in this series, we will give you the insights you need to take control of your new independence. Well look at this from a legal perspective explaining what the law requires. And well also address the practical requirements what you actually need to do, to get yourself on a stronger, more secure footing. Well look at topics such as:

  • Privacy and security issues
  • Resources to help you become more financially literate
  • Special concerns for high net worth individuals

Recommended Reading: How To Start The Process Of Divorce

What About Living Apart And Separations

Living apart, without a formal written agreement of separation or a court judgment of separation, is not recognized as a ground for a New York State divorce, no matter how long you continue to live separately.

Regarding separations, there are only two valid ways to dissolve a marriage. Each requires separation of one or more years. The law requires that you and your spouse live apart either under a written contract of separation or under a court judgment of separation and the spouse seeking the divorce must have substantially complied with the terms of the agreement or judgment.

Q: What Are The Types Of Child Custody

In New York, there are two types of custody legal custody andphysical custody. Additionally, these two types of custody can be awarded to one or both parents as eithersole custody orjoint custody.

Legal custody is the type of custody that determines which parent/parents make important life decisions for the children, such as where they go to school, what medical care they receive, etc. Physical custody establishes which parent the child lives with and when. In sole custody cases, only one parent is granted legal custody, physical custody, or both. In joint custody cases, both parents share legal custody, physical custody, or both.

Recommended Reading: How Long Does An Uncontested Divorce Take In Michigan

Avoid The Pitfalls By Contacting Our Albany Divorce Lawyers

You can see that divorce process in NY is complicated, so its a mistake to represent yourself. You put your legal rights at risk unless you have a legal background, and errors can be even more costly than retaining an attorney. At The Colwell Law Group, LLC, our dedicated divorce lawyers have helped many New York couples through the proceedings, and well ensure protection of your interests. For more information on our divorce-related services, please contact our team today. We can set up an initial consultation for you at our Albany offices, where we serve clients throughout the Capital District region.

Q: Do I Need Grounds To File For Divorce In New York

New York State Divorce Law - DivorceTalk.net (2)

As of 2010, you no longer need grounds to file for divorce. Now, you can file on no fault grounds by claiming “irreconcilable differences.” Prior to the change in New York’s divorce laws, however, a couple would only be able to divorce if one of the following was true:

  • Cruel and inhuman treatment

You May Like: Fake Divorce Papers To Scare My Husband

What If My Spouse Does Not Want The Divorce

If the ground for divorce is anything but No-Fault, then the spouse that does not want the divorce needs to make every effort to prevent the other spouse from proving that their grounds for divorce have merit. If successful in preventing that, the court will not grant the divorce. However, because New York has recently become a No-Fault state, it appears that the granting of a divorce is inevitable.

However, with No-Fault divorces in New York, all issues of the marriage need to be resolved prior to the No-Fault divorce being granted. Therefore, all issues on custody, support, spousal maintenance and equitable distribution of marital assets need to be resolved first.

As such, it is possible to delay the divorce by fighting over these issues, but keep in mind that if the parties cannot reach a resolution on theses issues, the court will eventually schedule a trial on these issues and make its own determination and then move on to granting the No-Fault divorce.

What Is Cruel And Inhuman Treatment

Cruel and inhuman treatment can involve either physical or mental cruelty. To be a reason for divorce, the treatment must have such a serious effect on the physical or mental health of the divorce-seeking spouse that it is not safe or proper for the parties to continue the marriage.

Some examples of acts that courts have held to be cruel and inhuman treatment for divorce purposes include physical attacks upon a spouse constant screaming, profanity or other verbal abuse gambling away the household funds staying away from the house too often without an explanation going out with another man or woman and wrongfully accusing the other spouse of adulterous relations with another man or woman.

Alcoholism, by itself, usually is not a sufficient basis for divorce, unless your spouse becomes cruel or violent when intoxicated, so that you fear for your health and safety.

Mental illness also is not a sufficient basis for a divorce on the grounds of cruel and inhuman treatment, unless a spouses other behavior could be defined as cruel and inhuman treatment. However, mental illness is not a defense to cruel and inhuman treatment. Nevertheless, a court may declare a marriage void when a spouse has been incurably mentally ill for a period of five years or more.

Don’t Miss: How Is Alimony Calculated In Nj

Can I Get Maintenance

Once you are in the process of a divorce, support is referred to as maintenance or alimony. If you are getting separated or divorced, the supreme court can award you temporary maintenance and/or post-divorce maintenance, which applies once the divorce is finalized. For temporary maintenance and post-divorce maintenance,there are specific guidelines and a mathematical formula that determines how much you can get. The New York Courts website has an online calculator to help you figure out what you may be entitled to in temporary maintenance and a calculator to help you figure out what you may be entitled to in post-divorce maintenance. However, for both temporary and post-divorce maintenance, the judge can vary from the formulate if s/he determines that the guideline amount of maintenance is unjust or inappropriate.1

Note: Even prior to filing for a divorce, you may be able to file for spousal support in family court while still married to your spouse.2 To read the relevant law, go to our Selected New York Statutes page and read Family Court Act § 412.

1 NY Dom Rel Law § 236 236 ,, 2 NY Fam Court Act § 412

Alimony Awards In New York

Should New York State get a divorce?

Alimony isn’t awarded in every New York divorce. A judge will review several factors to determine if alimony is appropriate in your case, including a spouse’s need for financial support and the other spouse’s ability to pay. As part of any alimony award, a judge will evaluate the length of the marriage, each spouse’s current and future earning ability, the receiving spouse’s ability to become self-supporting, and each spouse’s financial or homemaking contributions to the marriage.

Alimony can be awarded in a lump sum, as temporary support, or periodic, monthly payments. To modify an alimony award, the person requesting the modification must show that circumstances have changed so substantially that the current order is no longer appropriate. In most cases, a periodic alimony award will continue for the length of the marriage.

Don’t Miss: How To Avoid Paying Taxes On Alimony

The Divorce Summons In New York State

In New York state, you only have twenty days to answer a divorce summons personally delivered to you under New York law, so you must immediately contact a divorce attorney to start working on your divorce case. Since it is unlikely that you already know which New York family law firm or divorce attorney you wish to retain, you will need to do your research and interview your top candidates quickly to get on board with a legal team that is a good match for you and your needs. Make sure to choose an experienced family law attorney who listens to you and answers your questions honestly, even if it isnt the news you were hoping for, and who makes you feel respected and comfortable in their presence.

Top Articles
Latest Posts
Article information

Author: Trent Wehner

Last Updated: 04/22/2023

Views: 5921

Rating: 4.6 / 5 (76 voted)

Reviews: 91% of readers found this page helpful

Author information

Name: Trent Wehner

Birthday: 1993-03-14

Address: 872 Kevin Squares, New Codyville, AK 01785-0416

Phone: +18698800304764

Job: Senior Farming Developer

Hobby: Paintball, Calligraphy, Hunting, Flying disc, Lapidary, Rafting, Inline skating

Introduction: My name is Trent Wehner, I am a talented, brainy, zealous, light, funny, gleaming, attractive person who loves writing and wants to share my knowledge and understanding with you.