What is Divorce?
A divorce is referred to in some states as the dissolution of marriage and is a decree by a court that a valid marriage no longer exists. A divorce leaves both parties free to remarry. It usually provides for the division of property and makes arrangements for maintenance (the present form of alimony) as well as child custody and support.
In the event of divorce, the husband and wife generally are free to divide their property as they see fit. They may enter into what is called a marital settlement agreement. A settlement agreement is a contract between the husband and wife that divides property and debts and resolves other issues of the divorce.
Lawyers sometimes work with both parties to reach an agreement by negotiation or mediation by trying to help husband and wife identify and accommodate common interests. The lawyers and the two parties then present their negotiated or mediated agreement to a judge to grant the divorce under the terms of the agreement. In this situation, the divorce is made by mutual agreement and is typically referred to as an uncontested divorce.
If parties are unable to agree on the property, support, and child custody, they may ask the court to decide one or more of those issues. If the parties are unable to agree to the terms of a divorce, it is typically referred to as a contested divorce. Sometimes, divorces start as contested matters and agreements are reached later on in the legal process. Most parties reach agreements either at the beginning or at some time prior to having a trial before a judge.
What are the grounds for divorce in New York?
There are several ways to claim a divorce in New York. These are called the grounds for divorce. Due to recently enacted amendments, there are now seven grounds that are available for you to obtain a divorce in New York. The divorce settlement agreement or judgment will include orders respecting marital property and debts, as well as custody, visitation, spousal support (sometimes referred to as maintenance), and child support.
- Irretrievable Breakdown: This has become one of the common grounds of divorce since its enactment. The relationship between you and your spouse has broken down irretrievably for at least six months. This is sometimes called a “no fault” divorce.
- Cruel and inhuman treatment: “Cruel and inhuman treatment” by your spouse. This means that your physical or mental health is in danger if you continue living together. However, if the abusive treatment happened more than five years ago, you cannot divorce for this reason if your spouse objects.
- Abandonment: Your spouse “abandons” you for at least a year. This means that your spouse has left you and does not intend to return, or you have been forced you to leave the marital abode.
- Imprisonment: If your spouse goes to jail for three or more years. However, if your spouse was released more than five years ago, you cannot divorce for this reason.
- Adultery: Your spouse commits adultery. However, this is not a reason for divorce if you do any of the following: encourage your spouse to commit adultery, forgive your spouse by having sexual relations with them after you discover the adultery, or commit adultery yourself. You also cannot divorce because of adultery if it has been more than five years since you discovered the adultery. You cannot testify yourself to prove adultery, so you must have a witness who can testify.
- Judgment of Separation: You and your spouse have not lived together because of a “Decree of Separation” or “Judgment of Separation”, given by the Court, for at least one year. You must obey all the conditions of the decree or judgment. It is unusual to have a Judgment of Separation because it requires similar proof to that needed for a divorce. Most people skip the Judgment and go directly to divorce.
- Separation Agreement: You and your spouse have not lived together because of a written “Agreement of Separation” for at least one year. Both you and your spouse must sign this agreement before a notary. You must obey all the conditions of the agreement. This is sometimes called a “conversion divorce”. Conversion divorces allow divorces based upon a Separation Agreement that you already had in place for a full year. The Separation Agreement is turned into a divorce. Even if you want a divorce on other grounds, a Separation Agreement can make a divorce faster and easier.
What are the residency requirements for a divorce in NY?
Residency requirements give a New York court jurisdiction over the parties and the power to decide your divorce case. A New York court can only decide a divorce case if at least one of the spouses is presently a New York resident. In most cases, one of the spouses must have lived in New York for at least one year before trying to get a divorce.
What is Equitable Distribution?
Equitable distribution is a method for distributing property acquired by owned by either spouse upon the dissolution of the marriage, which replaces “common law” principles of property ownership. Prior to the adoption of “equitable distribution” in New York, New York was a “common law property” state. This meant that upon the dissolution of the marriage, the property owned by either spouse was distributed according to the manner in which title was held. New York is now an “Equitable Distribution State.” This means that upon dissolution of a marriage, the Court must distribute “equitably” all “marital property” regardless of the manner in which title is held, considering the following factors: Income of each party at time of marriage;
- Income of each party at time of commencement of action;
- Property of each party at time of marriage;
- Property of each party at time of commencement of action;
- Duration of marriage;
- Age of both parties;
- Health of both parties;
- Need of custodial parent to occupy or own marital residence;
- Need of custodial parent to use or own household effects;
- Loss of inheritance rights upon dissolution as of date of dissolution;
- Loss of pension rights upon dissolution as of date of dissolution;
- Any award of maintenance;
- Equitable claims to or interest in or direct or indirect contribution to the acquisition of the marital property by the party not having title, including:(a) Joint efforts;(b) Expenditures;(c) Contributions as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party;
- Liquid or non-liquid character of all marital property;
- Probable future financial circumstances of each party;
- Impossibility or difficulty of evaluating any asset or interest in a business, corporation or profession;
- The desirability of retaining the asset, or interest in the business, corporation or profession free from any claim or interference by the other party;
- The tax consequences to each party;
- The wasteful dissipation of assets by either spouse;
- Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; and
- Any other factor which the Court shall expressly find to be just and proper.
What property is subject to equitable distribution?
All property acquired by either or both parties during the marriage, but before execution of a separation agreement, and before the commencement of a matrimonial action, regardless of the form title is held. It does not include property provided for in a written agreement. It does not include “separate property”, which is defined as property acquired before marriage; property acquired by bequest, devise, descent or gift from a party other than the spouse; compensation for personal injuries; property acquired in exchange for or the increase in value of separate property; property described as separate property pursuant to written agreement of the parties. However, the increase in the value of the separate property (or property acquired in exchange for the separate property) is marital property to the extent that the appreciation is due in part to the direct or indirect contributions or efforts of the other spouse.