New York Divorce 101

New York Divorce 101

If you or your spouse have made the decision to file for divorce, you might be wondering what first steps you should take to get through this difficult process as quickly and amicably as you can.

Knowing how a divorce works before it begins can make the entire divorce process more peaceful, fair, and drama-free (or as drama-free as a divorce proceeding can be). This article will help you understand the process and what you can expect when divorcing.

What Are the Grounds for Divorce in New York?

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:

  • Cruel and Inhuman Treatment.
  • Abandonment (actual or constructive) for one or more years.
  • Imprisonment for three or more years; and
  • Adultery

Now that I have listed the four “fault” grounds, you can forget about them. The introduction of the “no-fault” divorce ground (defined below) has made all other grounds virtually obsolete. In most cases, I do not suggest asserting these grounds unless you really want to start off on the wrong foot with the Judge.

There are also two grounds for divorce which contemplate that the parties will live separate and apart for one year or more. They are commonly referred to as “conversion divorces.”

The final, and most often used ground for divorce in New York is the irretrievable breakdown ground or “no-fault divorce.” To use this ground, one of the parties must state, under oath, that the marriage has irretrievably broken down for at least 6 months prior to filing for divorce.

Will Marital Fault Impact My Rights to A Property Settlement?

Generally, marital fault does not impact 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 regarding the division of assets but may be a factor in determining spousal support (alimony) and custody. Again, this is the exception as opposed to the rule.

How Is Child Custody Determined?

For most, this is the million-dollar question and can be answered in five words: “Best Interests of the Child “. What goes into the Court’s “best interests” analysis you ask? Read our blog below to find out. (I know, the suspense is unbearable.)

How Is Child Support Calculated?

Child Support in New York is calculated pursuant to the Child Support Standards Act (“CSSA”). A non-custodial parent’s basic child support obligation is calculated by multiplying the combined parental Income by the appropriate child support percentage and dividing that by the parties’ pro-rata share. “Income” is defined as “gross income as was or should have been reported on the most recent federal income tax return” fewer deductions for FICA Medicare and social security taxes and New York City and Yonkers income taxes.

If you or your spouse owns a business, the calculations can get a little tricky. Often the “expenses” of the business are not normal and customary business-related expenses and can be added back into the net income of the business owner for the purposes of calculating child support. Hiring a matrimonial attorney with real-life experience handling divorces involving business interests is critical to obtaining the most favorable child support outcome.

The child support percentages are as follows:

  • 17% of the combined parental income for one child.
  • 25% of the combined parental income for two children.
  • 29% of the combined parental income for three children.
  • 31% of the combined parental income for four children; and
  • No less than 35% of the combined parental income for five or more children.

In applying the child support percentage above to the combined parental income, there is currently a statutory income “cap” of $148,000. However, Courts regularly deviate above this cap in determining child support in cases where the parents earn income above $148,000. (Be aware that $148,000 is a number set by statute and subject to increase every other year.)

How Long Must I Pay, or Can I Receive Child Support?

Generally, the custodial parent is liable to provide support for his/her child or children until the age of 21, unless that child or children become emancipated before they attain the age of 21. Examples of an emancipation event include engaging in full-time employment, marriage, and entry into military service. The parties can also agree to the payment of child support through the age of 22.

What Property Is Subject to Equitable Distribution?

All marital property may be subject to division. Marital property is defined as all property acquired by either or both parties during the marriage but before the commencement of the divorce, regardless of the form in which the title is held. Assets that may be divided include bank accounts, real property (i.e., the marital residence) pensions and retirement accounts, cars, brokerage accounts, and businesses. It is important to note that while these properties may be divided, one spouse may be entitled to more than another, whether due to a spouse’s separate property credit or some other exemption.

How Is Marital Property Divided?

The purpose of equitable distribution is to achieve a fair distribution of what the parties acquired during their marriage. The term “equitable” does not necessarily mean that the property will be divided equally. Courts regularly fashion equitable distribution awards which consider marital waste, separate property credits, passive and active appreciation of assets, and the like.

What Property Is Not Subject to Equitable Distribution?

There are several categories of property not subject to distribution. The major ones are (I) property acquired before the marriage which was maintained separately from marital assets and (II) 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.” The presumptive amount of spousal support due to the less monied spouse is now determined by a statutory formula. This formula can be found on the New York Courts website or by clicking the link below and following the directions.

It is important to note that a final award of spousal support, while also subject to a statutory calculation, will also require an in-depth case-by-case analysis. The factors considered by a Court in fashioning the amount and duration of a final maintenance award include the following:

  • The disparity of income between the parties.
  • The present and future earning capacities of the parties.
  • The duration of the marriage.
  • The health of the parties; and
  • The presence or absence of young children

Generally, spousal support is granted for a set period of time (often referred to as “durational maintenance”) so that the party receiving support can get back on their feet after the termination of the marriage. The length of time support is required to be paid by the payor spouse to the payee (less monied) spouse is set by formula and consists of a “hi-low” range. It is up to the Court to determine what duration is appropriate on a case-by-case basis. In some, very rare instances, spousal support is awarded on a permanent basis due to a party’s age (about 60 or older) or in cases of a physical or mental disability.

I hope this overview of the New York Divorce process answered some of the questions you may be facing as you contemplate a divorce. If you have any additional unanswered questions, please call us today. The attorneys at Barrows Levy PLLC regularly represent spouses in simple and complex divorce actions within the New York Metro Area, Nassau, and Suffolk Counties. We offer private, confidential FREE consultations.

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