If you or your spouse have decided to file for divorce, you might wonder what the first steps should be to get through this complex process as quickly and amicably as possible.
Knowing how divorce works before it begins can make it more peaceful, fair, and drama-free (or as drama-free as a divorce proceeding can be). This list of New York divorce FAQs will help you understand the process and what to 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 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 want to start on the wrong foot with the Judge.
There are also two grounds for divorce that contemplate that the parties will live separately for one year or more. These are commonly referred to as “conversion divorces.”
The final and most often used ground for divorce in New York is an irretrievable breakdown, 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 six 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 matrimonial 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 a 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? Please read our blog post on determining a child’s best interest.
How Is Child Support Calculated?
Child Support in New York is calculated under the Child Support Standards Act (“CSSA”). A non-custodial parent’s fundamental 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,” with fewer deductions for FICA, Medicare, Social Security, and New York City and Yonkers income taxes.
The calculations can get tricky if you or your spouse own a business. The business’s “expenses” are often not ordinary business-related expenses and can be added to the business owner’s net income to calculate 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, a statutory income “cap” of $148,000 exists. 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 age 21 unless that child or children become emancipated before age 21. Examples of an emancipation event include engaging in full-time employment, marriage, and entry into military service. The parties can also agree to pay child support by age 22.
You can read more about how long child support last for both parties here
What Property Is Subject to Equitable Distribution?
All marital property may be subject to division. Marital property is 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?
Equitable distribution aims to achieve a fair distribution of what the parties acquired during their marriage. “Equitable” does not necessarily mean the property will be divided equally. Courts regularly fashion equitable distribution awards that consider marital waste, separate property credits, passive and active appreciation of assets, and the like.
What Property Is Not Subject to Equitable Distribution?
Several categories of property are not subject to distribution. The major ones are (I) property acquired before the marriage that was maintained separately from marital assets and (II) gratuitous transfers by way of gifts, devises, or bequests from third parties.
How Is Spousal Support (Alimony) Calculated?
Alimony is known as “maintenance” or “spousal support.” A statutory formula now determines the presumptive amount of spousal support due to the less-monied spouse. 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 subject to a statutory calculation, will 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 (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 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 permanently due to a party’s age (about 60 or older) or in cases of a physical or mental disability.
I hope this New York Divorce process overview answers some of the questions you may face 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.
