What are the grounds for divorce?
In New York, there are seven grounds for divorce. Of the seven grounds, four of them are based on the "fault" of one of the parties.
They are: a) cruel and inhuman treatment; b) abandonment for one or more years; c) imprisonment for three or more years; and
d) adultery. Living apart for one year under a separation judgment granted by a Court or under a separation agreement signed by
the parties are the two grounds that are not fault based. In October 2010, New York State passed no-fault divorce legislation. This
no-fault divorce law allows a person to file for divorce based upon the ground that the the marriage has broken down irretrievably
for a period of at least six months, provided that one party has so stated under oath.
Will marital fault impact on my rights to a property settlement?
Generally, marital fault does not impact on the economic issues of the divorce. However, there are exceptions, particularly when
one spouse is found to have wasted marital assets. Another example may be adultery which is not a factor with regard to equitable
distribution issues, but it may be a factor in determining alimony. Again, this is the exception as opposed to the rule.
How is child custody determined?
In New York, in a contested custody battle, custody of the children is determined through an exhaustive examination of the totality
of the circumstances to determine the "best interests of the children." In determining what is in the best interest of the children, a
court will consider many factors, including:
a) the pre-existing custodial arrangement; b) who is the primary caretaker of the child; c) the historical relationship of the child
and the parents; d) the financial status and ability of each parent to provide for the child; e) what is the nurturing ability of the
parents; f) who has better judgment; g) the desirability of keeping siblings together; h) the wishes of the child, if of sufficient age
and maturity; i) the parents' lifestyles, including substance abuse or chemical addiction of a parent; j) the parents' religion; k)
whether a parent will encourage or discourage visitation; l) continuity of a stable environment; m) the age of the child; n) a
parent’s neglect or abuse of the child; o) the quality of each parents' home environment; p) the parental guidance each parent
provides for the child; q) the ability of each parent to provide for the child's emotional and intellectual development; r) the relative
fitness of the respective parents including their mental condition; and s) the length of time the present custody arrangement has
been in effect.
How is Child Support calculated?
Child support in New York is calculated pursuant to the Child Support Standards Act ("CSSA") The basic child support obligation is
calculated by multiplying the combined parental income by the appropriate child support percentage. Income is defined as "gross
income as was or should have been reported on the most recent federal income tax return" less deductions for social security and
New York City and Yonkers income taxes. The "child support percentage" is fixed at: a) 17% of the combined parental income for
one child; b) 25% of the combined parental income for two children; c) 29% of the combined parental income for three children;
d) 31% of the combined parental income for four children; and e) no less than 35% of the combined parental income for five or
What property is subject to equitable distribution?
All marital property may be equitably distributed. Martial property is broadly defined as all property acquired by either or both
parties during the marriage, but before execution of a separation agreement, and before commencement of a matrimonial action,
regardless of the form in which title is held.
How will the marital property be divided?
The purpose of equitable distribution is to achieve a fair distribution of what the parties acquired during their marriage. "Equitable"
does not necessarily mean that the property will be divided one-half to each of the parties. The theory is based upon marriage as a
partnership so that even if one party (usually the husband) technically acquired all of the assets through earned income, while the
wife was at home and not working outside the home, the Court would still recognize that the marriage was, in fact, a partnership
and but for the fact that the wife was at home keeping the household for the family, he would not have had the opportunity to
earn the income for this marital partnership. Thus, the identity of the person who actually earned the money is immaterial and
unless the parties can agree, the Court would distribute all property in a manner that it deems "equitable."
What property is not subject to equitable distribution?
There are several categories of property not subject to distribution. The major ones include property acquired before the marriage
which was maintained separately from marital assets or gratuitous transfers by way of gifts, devise or bequests from third parties.
How is spousal support (alimony) calculated?
Today alimony is known as "maintenance" or "spousal support." To calculate the presumptive amount of spousal support pendente lite
(pending the litigation) you are entitled to during the divorce, click on the link below:
It is important to note that there is no post judgment formula for spousal support. A grant of spousal support depends on the facts of the
case, such as the disparity between the income of the parties, the duration of the marriage, the health of the parties, and the presence of
very young children. In New York spousal support is rarely granted on a permanent basis, except in cases of physical or mental disability
or when the parties are elderly (about 60 years old or older). Generally, it is granted for a set period of time so the other party can get back on their feet after the termination of the marriage. The length of time depends on the facts of the case as the judge sees fit to award.
How long must I pay or can I receive child support?
Generally, a parent is liable to provide support for his\her children until the children attain the age of 21, unless the children become
emancipated before they attain the age of 21. Examples of emancipation event include engaging in full-time employment, marriage or
entry into the military service.
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