Divorce & Family Law FAQ

In order to file a divorce in New York, either spouse must live in New York for one year if (a) the marriage took place in New York, (b) the parties lived as husband and wife in New York, (c) the grounds for the divorce occurred in New York (d) the grounds occurred in New York and both parties lived in New York when the divorce is filed. A divorce may also be filed if either spouse lives in New York for at least two years.

New York has six grounds for divorce. They are (1) Cruel and inhuman treatment, (2) Abandonment for one year or more, (3) Adultery, (4) Imprisonment for three years or more, and (5) Living apart pursuant to a judicial separation for one year or more, (6) Living apart pursuant to a written separation for one year or more.

There are several options. Lack of support constitutes grounds for a separation action. In addition, a spouse may file a proceeding for support against his or her spouse.

Yes. The court can authorize service of the divorce action by substituted service if it is shown that the location of your spouse cannot be determined. Substituted service can include service to a member of your spouse's family or service by publication in a newspaper.

Child support in New York is a percentage of the noncustodial parent's adjusted gross income. For one child, it is seventeen percent. Two children, twenty-five percent, three children, twenty-nine percent, four children, thirty-one percent, and for five children or more children, no less than thirty-five percent. For additional information,

Marital property is any asset acquired by either spouse during the marriage. However, there are a few exceptions.

Gifts to one spouse, an inheritance, personal injury awards for pain and suffering, and property acquired by separate property.

In New York, marital property in is divided under the theory of equitable distribution. Under equitable distribution, the court may only divide marital property when the marriage is dissolved. Each spouse receives an equitable, or "fair" share of the marital property based on the overall facts of the case, based on the thirteen factors of Domestic Relations Law (DRL) 236B(5).

Under community property, both spouses have a vested right in the marital property at any time, independent of a divorce. Under equitable distribution, a non-titled spouse may assert his or her claim to marital property only when the status of the marriage is changed.

The court has no authority to distribute marital property if a divorce or annulment is not granted.

Unlike child support, there is no set formula for maintenance. The court will determine if an award of maintenance is appropriate, and if so, will apply the eleven factors listed in Domestic Relations Law (DRL) Section 236B(6)

No single factor will determine custody. The court will look at the overall facts and circumstances and determine what is in the best interests of the children. Some of the more significant factors are (1) which parent is the primary caretaker, (2) where the child is currently living and for how long the child has lived there, (3) the results of the forensic evaluation, and (4) the position of the law guardian

If the parents cannot reach an agreement on relocation, the court will permit or deny a request to relocate based on the best interests of the child.

When there is a large disparity between the spouse's income and assets, the court may grant an award of counsel fees.

The court may allow one spouse to buy the other spouse out, it may order the home to be sold to a third party, or it may grant exclusive occupancy of the marital residence to one spouse.