New York divorce laws

Join Our Community

	Divorce Chat Room

		Login

		Not a member? Sign Up.

	Blog

		Read and Post

	eNewsletter

		Sign Up

		View Archive

Research By State

Non-US Divorce

Canada

qdro

The payment of benefits from a retirement plan to anyone other than the participant is prohibited unless directed by a Qualified Domestic Relations Order (QDRO). It is essentially a court order that causes retirement plan benefits to be divided, in many cases avoiding taxation.

Both the participant (person who earned the benefit) and the spouse (known as the alternate payee) have certain rights provided by Federal laws.

A QDRO is generally required for all retirement plans except government or public employee plans. These exceptions do require a different type of court order to effect division however.

Payment from 401(k) or profit sharing plans to the alternate payee can occur in the form of an IRA rollover-type plan or in one single payment. Defined benefit plans generally only allow monthly payments, and are often set up as an annuity, paying the recipient for life.

Due to a variety of retirement plan options, statutory differences between the states, and a wide range of judicial discretion, simple answers to how and when retirement plan division occurs are not available. Legal counsel can help you get your interests represented fairly.

New York Divorce

child support	residency	child custody
grounds for divorce	mediation	alimony
waiting period	grandparents	distribution of assets

Child Support

new york divorce statutes Ancient New York divorce laws. You knew there was a reason you wanted to live and be married in New York State but can't quite remember why? It certainly isn't because of favorable divorce laws. Want to divorce because you've drifted apart and can't reconcile? Good luck in New York. A resident here has to accuse the other spouse of marital misconduct in order for a divorce petition to go forward. You may, however, elect to jointly draw up a separation agreement, register it with the court, separate for at least a year, and then use that separation agreement as the basis for a divorce. See the section Grounds for Divorce below. New York divorce laws do recognize divorces in Mexico (the only state in the U.S. to recognize such divorces). Its estimated over 250,000 New York couples get Mexican divorces each year.

Child support is based on the combined income of the parents and how many children the parent is supporting. This will be from declared income and evidenced with supportive documents. Any "off-the-books" income not declared can skew the division. The schedule is as follows: 1 child - 17% of the combined parental income, 2 children- 25%, 3 children- 29%, 4 children - 31%, 5 children - no less than 35% of the combined parental income. As is the case in, most states, New York requires that child support payments be made via wage garnishment. Methods to induce non-payers can include income tax refund confiscation, the seizure of any bank accounts or certificate of deposits (CD’s), reporting delinquencies to all credit reporting agencies and jail time. Custodial parents are not required to account for how the child support is spent. If you have serious concerns about that issue, you will need to go through the courts to have those concerns addressed.

Divorce Myth: Divorce may cause problems for many of the children who are affected by it, but by and large these problems are not long lasting and the children recover relatively quickly. Reality: Divorce increases the risk of interpersonal problems in children. There is evidence, both from small qualitative studies and from large-scale, long-term empirical studies, that many of these problems are long lasting. In fact, they may even become worse in adulthood.

Residency

New York courts will allow a petition for divorce (or annulment) to proceed if one or more of the following residency requirements are met:

The marriage occurred in New York and one spouse has been a resident for one year just preceding the filing, or
Each have resided in this state as husband and wife and either is a resident when the filing occurred have been a resident for one year prior to the filing, or
The cause for the action occurred in the state and either has been a resident for one year prior to the filing, or
The cause for the action occurred in the state and both are residents at the time of filing, or
Either has been a resident of the state for two years prior to the filing.

Child Custody

New York courts attempt to make decisions in the best interest of the child. In deciding who has custody and the nature of that custody, the court may consider any or all of the following:

Availability of parents to the child
Evidence of child abuse or neglect
The physical and emotional health of each parent
Environments of each parents home
Willingness of a parent to encourage the child's relationship with the other parent
Preferences of a mature child
Who has been the child's primary caretaker
Any agreement between the parents

Divorce Myth: Having a child together will help a couple to improve their marital satisfaction and prevent a divorce. Reality: Many studies have shown that the most stressful time in a marriage is after the first child is born. Couples who have a child together have a slightly decreased risk of divorce compared to couples without children, but the decreased risk is far less than it used to be when parents with marital problems were more likely to stay together “for the sake of the children”.

Grounds for Divorce

guillotine New York State divorce laws make it notorious for being one of the few states still caught in the Dark Ages with respect to divorce and the grounds for dissolving a marriage. The Catholic Church has exerted enormous influence over legislators, and it wasn't until recent years that New York State agreed to amend its divorce laws first drawn together in 1787. No "irreconcilable differences" exists as a choice for grounds for dissolution of a marriage. Yes Virginia, you must accuse your husband of marital misconduct if you wish to have your divorce filing heard. Making divorce more difficult in New York certainly keeps the divorce courts in business. One of the following grounds for divorce must be met and certain elements must be provable:

Cruel and inhuman treatment of the plaintiff by the defendant. This can be mental or physical cruelty such that it is not safe for the parties to continue the marriage.
One or the other abandons the marital home for a year or more. This is defined as having left without consent, there was no attempt to lock that person out, and that the spouse who left had no good reason for doing so.
One or both has been confined to jail or prison for at least three consecutive years after the marriage.
Adultery. Adultery must be evidenced. You may not testify against your spouse. You must provide witnesses for testimony. Circumstantial evidence is enough for a divorce judgment, and couples in New York in most cases have to hire a private investigator to obtain such evidence. The defendant can have the divorce petition halted or affirmed if the following apply:

Adultery has been encouraged or consent has been given
Sexual relations are resumed after the discovery of adultery, resulting in forgiveness
Statute of limitations has expired. Divorce grounded on adultery must be acted on within five years of the discovery.
Plaintiff is also guilty of adultery.

If the husband and wife have lived separate and apart for at least one year, and a separation agreement has been executed and filed with the county clerk to officially initiate the one year period, they may divorce.

Be sure to ask your attorney about the defenses to grounds for divorce. Statutes of limitations, mental health issues, or that both spouses engaged in conduct that they accuse the other of may apply.

Mediation

New York divorce laws have no provisions for mediation or counseling, although parental counseling is often recommended so that parents fully understand the implications divorce has on minor children.

Alimony

new york divorce Alimony (or Maintenance) is awarded in order to help a spouse to achieve independence. In many cases, the couple has agreed that one spouse remain home to care for children while the other worked outside the home. The stay-at-home spouse will often require cash maintenance to either be trained for re-entry into the labor force, or paid because they may not be capable of re-joining the labor force. Payments can be awarded for a definite or indefinite amount of time. How much is awarded, and for how long can be determined by the following:

The income and property of each party including distributed marital property
The length of the marriage as well as the age and health of both spouses
The current and future earning abilities of each spouse alimony
The ability of the spouse seeking maintenance to become self-sufficient and any time or training that may include alimony
Reduced lifelong earning capacity as a result of having foregone career opportunities or education during the marriage alimony
The presence of children of the marriage in the homes of each party
Tax consequences to each spouse alimony
Contributions as a spouse, parent, wage-earner and homemaker of the spouse seeking maintenance and to the career or career potential of the other spouse
The wastefulness of marital property by either spouse alimony
If a spouse has tried to hide assets in anticipation of divorce

Divorce Myth: Following divorce, the woman’s standard of living plummets by seventy three percent while that of the man’s improves by forty two percent. Reality: This dramatic inequity, one of the most widely publicized statistics from the social sciences, was later found to be based on a faulty calculation. A reanalysis of the data determined that the woman’s loss was twenty seven percent while the man’s gain was ten percent. Irrespective of the magnitude of the differences, the gender gap is real and seems not to have narrowed much in recent decades.

Waiting Period

New York divorce statutes does not mandate a minimum waiting period after filing before the divorce can be granted. However, mutual consent divorces have a one-year waiting period after filing the separation agreement. In other words, the clock starts ticking after the separation agreement has been filed, and not before. Do not cohabit during this time, as it can reset the clock.

Grandparents Rights

New York divorce statutes along withFederal guidance permit the court to grant reasonable visitation rights to the maternal and/or paternal grandparents of any child of the parties. This can apply to great-grandparents as well. Visitation may be granted when it is in the best interest of the children.

Dividing Assets

alimony New York is known as an equitable distribution state. This means that the court will divide marital assets equitably, but not necessarily evenly. The procedure is for the judge to determine what assets were pre-marital or inherited (and segregated in proper fashion) and set those assets aside. Your judge will then make a finding as to which assets go to each spouse. The couples marital indebtedness can play an important role in the asset division process. Courts will consider the following:

the income and property of each at the time of marriage, and again at the time of the filing for divorce;
the length of the marriage and the age and health of both;
The custodial parent's need to occupy residence and its contents;
Any loss of inheritance and pension rights should the action proceed to divorce;
any award of alimony or maintenance;
the contributions and services of each spouse to the career of the other.
liquidity of all marital property;
the probable future financial circumstances of each;
any interest in a business, corporation or profession each may have during the marriage;
taxes;
if either party wastefully dissipated any assets;
the transfer of any assets ahead of the filing such that it would deny the other a fair share;
judicial discretion over any other issue

Lawyer Advertisements

Did you know?

—The only state that fully recognizes Mexican divorce is New York—all because its own archaic law has forced more than 250,000 New Yorkers to get Mexican divorces.
—A study of adult children of divorce conducted by Glynnis Walker, author of Solomon's Children: Exploding the Myths of Divorce, found that 42% of children who lived solely with their mothers reported that their mothers had tried to prevent them from seeing their fathers after the divorce.
—Divorce rates go significantly lower in states where joint custody is more likely to be granted.
—Divorce rates among conservative Christians were significantly higher than for other faith groups, and much higher than Atheists and Agnostics experience¹.
—Nearly 40% of divorces occur in the first four years of marriage.
—The average length of a marriage that ends in divorce is about 7 years.
—The Baldwin County, AL pastor whose wife disappeared at a religious conference in Louisiana in 2007 received full and sole custody of his two children. Amazingly enough the Mother, when located in NY, was granted child visitation rights every other weekend and the parents will split physical custody on the holidays.
—With divorce, like death, there are various stages of mourning. Traditionally, loss is defined by four stages: denial, anger, sadness and acceptance. You may also experience dread, hopelessness, anger, blame, insecurity, and regret.
—Rather than slug it out in court, couples are using alternative dispute resolution techniques such as mediation or collaborative law.
—Out-of-wedlock U.S. births reached 1.5 million last year, or 36.8 percent of the total. Among non-Hispanic blacks, the illegitimacy rate reached a stunning 69.5 percent. Among non-Hispanic whites, the rate is up to 25.4 percent and for Hispanics the rate was 47.9 percent.

¹ Barna Research Group 1999

lets face it face it

There are many more self-help and personal growth books available through our Bookstore. We have partnered with Amazon.com for safe and secure transactions via their web site. Click on the Shopping tab above if you'd like to see more selections.