New York Divorce & Family Law FAQ
What are the residency requirements for a New York Divorce?
What are the grounds for a New York divorce?
Are there any options open to me if I don't have grounds for a divorce?
I don't know where my spouse is? Can I still file for a divorce?
How is child support calculated in New York?
What is marital property?
What isn't marital property?
How is marital property divided under New York's equitable distribution law?
How is equitable distribution different than community property?
So what happens to marital property if I can't get a divorce?
How is spousal support in New York determined?
How is child custody determined?
What happens when one parent wants to move away from New York with a child?
What happens if I don't have enough money to pay for a lawyer?
What will happen to the marital home?
What are the residency requirements for a New York Divorce?
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 to years. For additional details, see DRL 232 and the article "New York Residency Requirements."
Back to Top
What are the grounds for a New York divorce
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, (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. For additional information, see DRL 170 and the article "Divorce Grounds in New York."
Back to Top
Are there any options open to me if I don't have grounds for a divorce?
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.
Back to Top
I don't know where my spouse is? Can I still file for a divorce?
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 on member of your spouse's family or service by publication in a newspaper.
Back to Top
How is child support calculated in New York?
Child support in New York is a percentage of the non custodial 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, see DRL 240 or FCA 413, and the article "Child Support in New York."
Back to Top
What is marital property?
Marital property is any asset acquired by either spouse during the marriage. However, there are a few exceptions. For additional information, see DRL 236B(5) and the article "Equitable Distribution."
Back to Top
What isn't marital property?
Gifts to one spouse, an inheritance, personal injury awards for pain and suffering, and property acquired by separate property. For details, see DRL 236B(5) and the article "Equitable Distribution."
Back to Top
How is marital property divided under New York's equitable distribution law?
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). For further reading, see "Equitable Distribution"
Back to Top
How is equitable distribution different than community property?
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.
Back to Top
So what happens to marital property if I can't get a divorce?
The court has no authority to distribute marital property if a divorce or annulment is not granted.
Back to Top
How is spousal support in New York determined?
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). For additional information, see the article on New York Maintenance.
Back to Top
How is child custody determined?
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, (4) and the position of the law guardian. See the article on Child Custody for more information.
Back to Top
What happens when one parent wants to move away from New York with a child?
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.
Back to Top
What happens if I don't have enough money to pay for a lawyer?
When there is a large disparity between the spouse's income and assets, the court may grant an award of counsel fees. See DRL 237 and the article "Lawyer and Expert Fees" for more information.
Back to Top
What will happen to the marital home?
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.
Back to Top
J. Douglas Barics, Esq.
525 Northern Boulevard - Suite 210
Great Neck, NY 11021
Phone:(516) 829-4600
Email: lawyer@jdbar.com
Website: www.jdbar.com
Copyright © 2008 by J. Douglas Barics, Esq. All rights reserved
J. Douglas Barics, Esq. – Divorce, family, matrimonial lawyer in Long Island, New York.
|
