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Understanding New York Divorce Laws

Getting a divorce affects several aspects of your life, making it a complicated process to go through. Unfortunately, it can be a necessary choice to make.

If you are navigating a divorce, you must be knowledgeable about New York’s divorce laws. Our Nassau County divorce attorneys are here to explain the requirements of getting a divorce in New York and address specific issues that you might face during the process.

Requirements to File for Divorce in New York

Before someone can file for divorce in New York, they must meet two requirements. First, the party must satisfy the residency requirement, and second, they must fulfill one of the grounds for divorce in New York.

Residency

To comply with the residency requirement, the party must satisfy one of the following:

  • You or your spouse have been residing in New York State for a continuous period of at least two years immediately before the starting date of your divorce action

  • You or your spouse have been living in New York State on the time you started your divorce action, and for a continuous period of at least one year immediately before the date you start the divorce action, and one of the following must be true

    • Your marriage ceremony was performed in New York State; or

    • You lived in New York State with your spouse as a married couple

  • You or your spouse have been residing in New York State continuously for at least one year before the date of the start of your divorce action and your grounds must have occurred in New York State

  • You and your spouse must be residents of New York State on the date you start your divorce action, and the grounds for divorce occurred in New York State

Grounds for Divorce

New York has recently adopted a “No-Fault” Divorce provision to the Domestic Relations Law. DRL sec. 170(7) permits the Court to grant a divorce to the party who alleges the Irretrievable breakdown in the relationship for at least six months. You no longer need to prove any of the “fault-based” grounds in order to be granted a divorce. The six (6) “grounds” still exist in New York but proving any of these grounds to obtain a divorce is no longer required.

There are six grounds for divorce in New York as described in Domestic Relations Law §170. These are:

  • Cruel and inhuman treatment

  • Abandonment

  • Imprisonment

  • Adultery

  • Living separate and apart pursuant to a separation judgment or decree

  • Living separate and apart pursuant to a separation agreement

  • Irretrievable breakdown in the relationship for at least six months

Dividing Assets in a Divorce

Since New York is an equitable distribution state, property must be divided it equitably between each spouse in a divorce. This doesn’t mean the property will be split 50/50. During the process, both spouses have to tell the judge about their income and any debts they owe. Then, based on this information, the judge will divide property as fairly as possible.

Property division can be one of the most conflicting issues in a divorce case. The problem comes from dividing marital property, which is all the property either spouse purchased during the marriage. It can also include pension plans and other retirement benefits. Only marital property is divided in a divorce.

Separate property, on the other hand, will remain in the hands of the original owner. It is property a spouse owned before the marriage, and can also include:

  • Inheritances

  • Personal injury payments

  • Gifts from someone other than the spouse during the marriage

Separate property claims are complex and require the assistance of an experienced matrimonial attorney to protect your rights.

Child Custody Laws in New York

In the state of New York, child custody, also referred to as parenting, is a parent’s legal right to control their child’s upbringing. Two parts make up custody arrangements - legal and physical.

Legal custody is the right to make significant decisions about a child under the age of 18, which can include the following:

  • Where the child attends school

  • The child’s religious training

  • Medical treatment of the child

Physical or residential custody refers to who the child primarily lives with. The parent with primary physical custody is typically called either the “custodial parent” or the “primary caretaker.”

When a judge decides custody and visitation for a child, they will consider what is in the best interest of the child or children. There are several factors that they will consider, including:

  • The quality of each parent’s home environment

  • Who has been the child’s primary caretaker

  • How physically and mentally capable each parent is in providing the child with a stable home

  • Each parent’s ability to provide emotional and intellectual support for their child

  • The cooperation of each parent to allow the child to see the other parent

  • If there are any siblings involved

  • If there is a history of abuse

  • If the child is old enough, which parent they prefer to reside with

How to Start the Divorce Process

Choosing to get a divorce is never easy. If you are ready to start your divorce, you need a knowledgeable and confident attorney by your side. At The Pickney Law Firm, our goal is to help you navigate the process and protect you and your family’s rights.

Call us today at (516) 565-5555 for a free initial consultation regarding your divorce.

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