Divorce Law

We specialize in divorce law and can handle the termination of relationships via divorce, annulment, and separation agreements as well as the legal proceedings related to the division of property, child custody, and alimony.

 

This following information is designed to summarize the state of New York’s divorce laws and is not intended to be legal advice but simply to aid you in your decision-making process in seeking legal counsel:

 

Marriage is a civil contract. In compliance with the “Marriage Equality Act” signed into law in 2011 New York recognizes valid same-gender as well as opposite gender couples. The state has an interest in preserving marriages. Therefore, the marriage relationship can only be dissolved by a court, by either a divorce or an annulment. It also can be changed by a decree of separation granted by our courts. In any case, there must be a proceeding in the Supreme Court (which is the trial court of general jurisdiction) in which the person seeking the divorce, separation decree, or annulment must prove a basis for the divorce.

 

Pursuant to legislation signed into law in 2010 by the Governor of New York State, New York will now grant a divorce when there has been an irreversible breakdown of the marriage, for 6 months or longer, joining the rest of the country in instituting “no-fault” divorce. New York continues to have what is called a “conversion divorce mechanism” by which parties can obtain a divorce pursuant to a separation decree or a separation agreement for more than a year and the party seeking the divorce has substantially complied with the terms of the separation decree or the separation agreement.

 

Additionally, other fault grounds exist as noted below.

 

In order to get a judgment of separation, pursuant to DRL § 200, a party must prove cruel and inhuman treatment, abandonment, non-support, adultery or imprisonment.

 

There are 4 of the “grounds” in this state that are based on the fault of one of the parties:

  • cruel and inhuman treatment;
  • abandonment for one or more years;
  • imprisonment for three or more years; and
  • adultery

 

The other (“no fault”) grounds are:

  • one year of living apart under a separation agreement
  • one year of living apart under a separation decree granted by a court an irretrievable
  • breakdown of the marriage for a period of at least six months, provided that one spouse has so stated under oath

These 3 “no fault” grounds provide New Yorkers the basis to get a “no-fault” divorce, in which neither spouse is judged to be at fault. Unquestionably, the “no fault” laws will provide a disincentive for people who wish to challenge the basis for the divorce.

 

Defining New York’s “No Fault” Ground and the definition of “irretrievable breakdown of the marriage”:

An irretrievable breakdown of the marriage permits one spouse, unilaterally, to end a marriage

and to do so without the agreement of the other spouse. However, the 2010 law requires that a court cannot grant a judgment of divorce until after the economic issues of the marriage are handled.

 

To prove the ground of irretrievable breakdown of the marriage the party seeking the divorce must prove that:

  • the relationship between husband and wife has broken down irretrievably;
  • for a period of at least six months;
  • provided that one spouse states this under oath, and
  • proves that the “economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts’ fees and expenses as well as the custody and visitation with the minor children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce.”

Defining “cruel and inhuman treatment”:

Cruel and inhuman treatment can involve either physical or mental cruelty. To be a valid reason for divorce, the treatment must have such a serious effect on the physical or mental health of the divorce-seeking spouse that it is not safe or appropriate for the parties to continue the marriage. Some examples of acts that courts have held to be cruel and inhuman treatment for divorce purposes include physical attacks on a spouse, constant screaming, profanity, or other verbal abuse, gambling away the household funds, staying away from the home too frequently without an explanation, going out with another man or woman, and wrongfully accusing the other spouse of adulterous relations with another man or woman.

 

By itself, alcoholism, typically is not a sufficient basis for divorce, unless your spouse becomes cruel or violent when intoxicated, so that you fear for your health and safety. Mental illness also is not a sufficient basis for a divorce on the grounds of cruel and inhuman treatment, unless a spouse’s other behavior could be defined as “cruel and inhuman treatment.” However, mental illness is not a defense to cruel and inhuman treatment.

 

However, a court may declare a marriage void when a spouse has been incurably mentally ill for a period of 5 years or more. The courts have held that when there is long-term marriage (generally 15 or more years married) the acts of cruelty must be more substantial to justify a

divorce. The things that might be cruel in a short marriage may not be sufficient basis for divorce in a more mature marriage relationship. Each individual case, however, stands on its own facts. The court will decide whether or not these facts justify a dissolution of the marriage. Typically, the acts or conduct on which the divorce is based must have occurred within 5 years prior to the commencement of the action to be considered by the court.

 

Defining “abandonment for one or more years”:

Abandonment is defined as your spouse has intentionally left you without your consent, and of his or her own accord (i.e. you did not force or lock your spouse out of the house) and without justification. You are required to prove that your spouse had no good reason for leaving (such as your ill treatment or your consent), that your spouse left with the intention of never returning, and that your spouse did not offer in good faith to return. Unjustified refusal by a spouse to have sexual relations is also considered a “constructive abandonment” and may also be considered cruel and inhuman treatment. Abandonment must exist for a continuous period of at least one year before the action is started to be a basis for divorce in this state. There is no statute of limitations on abandonment, but it will depend on specific facts such as health issues, livelihood, compelling family obligations or other reasons. However, a separation agreement eliminates the ground of abandonment, since when both parties sign an agreement, they consent to living apart.

 

The basis of divorce when a spouse has been in “imprisonment for 3 or more years”:

Divorce on the grounds of imprisonment for 3 or more years is defined as the defendant actually must have served 3 years or more in prison before an action can be brought; even if the conviction is later overturned or reversed.

 

Defining adultery:

Bringing an action on the ground of adultery, particularly if your spouse is going to contest it, is not a simple matter. The proof of adultery in these cases is difficult. Typically, you are not permitted to testify against your spouse, and you are required to have a witness ready to convince the court that your spouse engaged in sexual relations with another person. Adultery is generally proven by circumstantial evidence through demonstrating that your spouse had the opportunity, inclination, and intent to engage in sexual relations with the other person.

 

There are 4 defenses to the charge of adultery, and if any of these are proven, the court will deny the divorce:

 

1.) “Procurement” or “connivance” —Procurement means that one spouse actively encouraged the other spouse to commit adultery. Connivance is similar to “collusion” or “consent” by a spouse to the adultery

2.) “Condonation” or “forgiveness” —Engaging in sexual relations with your spouse after discovery of his or her adultery is an absolute defense to your divorce action based on the adultery

3.) “Statute of Limitations” — There is a time limit, 5 years from your discovery of the first unforgiven act of adultery, for you to bring the divorce action

4.) “Recrimination” — This defense means that you, too, were guilty of adultery. No matter how convinced the court is that adultery was committed by both parties, it is forbidden from granting a divorce on grounds of adultery. Thus, if each spouse proves the adultery of the other, neither can obtain a divorce against the other on that ground

 

Living apart and separations:

Living apart, in absence of a formal written agreement of separation or a court judgment of separation, is not recognized as a basis for a New York State divorce, no matter how long you continue to live separately.

 

In separations, there are only 2 valid ways to dissolve a marriage. Each requires separation of one or more years. The law requires that both you and your spouse live apart either under a written contract of separation or under a court judgment of separation and the spouse seeking the divorce must have substantially complied with all the terms of the agreement or judgment.

 

Separation agreements:

A separation agreement is a detailed contract which should be prepared by attorneys, where the parties agree to live separate for the rest of their lives. It should set forth the respective rights and duties of husband and wife in regard to the custody and access to children, distribution of property, support payments, and all other matters related to the marital relationship. Specific essential formalities must be carefully followed, or the written agreement will not qualify as a ground for divorce. Here, the skill and experience of the attorneys for the husband and wife are uniquely valuable in helping them reach an agreement that will be fair, just, and reasonable to both parties and their children.

 

Either the agreement or a memorandum of the agreement is filed with the clerk of the county where either spouse lives. After one year from the date of the agreement, either spouse may file and serve a summons against the other for a “no-fault” divorce. It must be proven to the court that the agreement was duly executed and acknowledged and was properly filed; that the spouses have lived separately during the period of the agreement up to the time of the divorce action; and that the plaintiff has substantially complied with the terms of the separation agreement. The court will grant a divorce based on that proof.

 

Defining a separation decree:

Another form of separation is through a judgment of separation granted by the Supreme Court. This judgment is based on the same 4 “fault” grounds as for divorce; however, the abandonment may be for less than a year. Additionally, “non-support” is a ground for a decree of separation, although not for a decree of divorce.

 

Defining an annulment:

An annulment is granted when a marriage is voidable or void from the beginning, meaning, that there was a defect at the time the parties entered into the marriage, enabling the court to render it invalid.

 

Grounds for annulment includes:

 

Fraud: It may be annulled where the consent was obtained by fraud, provided the fraud would have deceived a reasonable and prudent person and was also material to obtaining the other party’s consent. The fraud must be such as to go to the essence of the marriage contract. Only the injured spouse and his or her parent/relative with an interest to avoid the marriage can obtain the annulment on this ground. Fraud claims include, but are not limited to: misrepresenting one’s religious denomination or the intensity with which one practices; secretly carrying a disease or genetic disorder that would increase the risk of procreation; concealing one’s inability to procreate; coercing one’s husband into entering a marriage based on a false declaration of paternity; misrepresenting sexual proclivities; and physically being incapable of consummating the marriage.

 

Non-age: Both parties must be over the age of 18 years, unless a party is between 16 and 18 years old and has parental consent to marry; or is under 16 years and has both parental consent and court approval to marry. No person under the age of 14 years may marry under any circumstances. A marriage between persons under the age of 18 may be annulled, at the discretion of the court, if the spouse under 18 wants an annulment, or an action may be maintained not only by the underage spouse, but also by either his or her parent or guardian.

 

5 years of incurable insanity: If during the marriage, either party becomes incurably insane for 5 years or more, the marriage can be annulled. However, the sane spouse may be required to support the insane spouse for life.

 

Mental Incapacity: A marriage may be annulled if one or both of the parties suffered from mental illness or retardation at the time the marriage was entered into. This ground is waived if the moving party remains in the marriage after his or her incapacity is cured.

 

Duress: The parties must knowingly consent to the marriage. The marriage may be voided if either spouse consents to marry as a result of the force or duress of the other spouse; or, if either spouse cannot understand the commitment they are about to make. However, subsequent cohabitation, or evidence of forgiveness on the part of the coerced spouse, may disable his or her ability to plead under this ground.

 

Already married: If a spouse gets married before his or her previous marriage was legally dissolved or annulled, then the present marriage will be void.

 

Dissolving a marriage when a spouse has been missing:

When your spouse is absent and missing for 5 years or more, you can bring a special proceeding in Supreme Court to dissolve the marriage. You are required to prove that your spouse has been absent for 5 successive years, without being known to be alive; that you believe that your absent spouse is dead; and that you made efforts to discover that he or she is still living, but no evidence proving otherwise was found. After the dissolution becomes final, the reappearance of your absent spouse does not revive your marriage.

 

Property Division & The equitable distribution law:

The division of assets and the fixing of support are covered by the Equitable Distribution Law. This statute is founded on the philosophy that a marriage, especially one of long-term duration, is an economic as well as a social partnership. Two classes of property were created, “marital” and “separate” property. Marital property is defined as all property acquired during the marriage (regardless of how title is held), except inheritance, gifts from third persons, compensation for personal injuries and property acquired after the start of a divorce action.

Marital property and marital debts are distributed between spouses in a dissolution action on flexible and equitable principles. Valuation of marital property might require expert advice. The distribution of marital property and the award of support as a result of matrimonial negotiations or proceedings might involve complicated and vital tax consequences to both parties which require expert advice.

 

SUPPORT AND FEES

Alimony and/or Spousal Maintenance:

Under the statute Alimony or Spousal Support is referred to as “maintenance”. Maintenance generally falls under 2 categories:

1.    Maintenance to be paid while the action of divorce is pending, referred to as temporary maintenance or pendente lite maintenance, and

2.    Maintenance to be paid after the action of divorce has concluded – called post-divorce maintenance.

For actions commenced after October 26, 2015, in the case of temporary maintenance, and January 25, 2016, in the case of post-divorce maintenance, the Court must follow certain guidelines to determine the temporary maintenance and post-divorce maintenance awards. The same formulas apply for temporary and post-divorce maintenance awards.

At present, for purposes of these calculations, the payor’s income will be capped at $178,000 (subject to adjustment for cost of living every even-numbered year on January 31st).

 

When the maintenance payor paying maintenance and child support: There are two different maintenance formulas utilized by the Court. One formula is used where child support is being paid by the maintenance payor to the recipient spouse. Under this circumstance, the Court will apply two calculations. In the first calculation, the Court will determine the temporary maintenance award by subtracting 25% of payee’s (the spouse seeking maintenance) income from 20% of the payor’s (the spouse paying maintenance) income up to $178,000. In the second calculation, the Court will add the payor’s income up to $178,000 to the payee’s income and multiply the combined incomes by 40% and subtract the payee’s income from the total. The lower of the two amounts is the presumptive amount of maintenance.

 

When the maintenance payor is paying only maintenance: A different formula is utilized where no child support is being paid by the maintenance payor to the recipient spouse. As in the case when child support is being paid, the Court will apply two calculations and the lower of the two amounts will be the presumptive amount of maintenance. In the first calculation, the Court will determine the temporary maintenance award by subtracting 20% of the payee’s income from 30% of the payor’s income. Alternatively, in the second calculation, the award is determined by taking 40% of the parties’ combined income using the payor’s income up to $178,000 and subtracting the payee’s income from that total.

 

Temporary maintenance awards:

The Court has the discretion to include additional income above the $178,000, based on one or more of 13 factors. The Court also has the flexibility to deviate from the presumptive amount of temporary maintenance when it finds that the presumptive award is unjust or inappropriate based on consideration of one or more of 13 factors. The Court will consider and allocate, where appropriate, the parties’ respective responsibilities for payment of the family’s expenses during the pendency of the action. Temporary maintenance awards end no later than the earlier of the issuance of a divorce judgment or the death of either party. However, the Supreme Court has the power and discretion to limit the duration of temporary maintenance (i.e., end prior to a divorce judgment).

 

Post-divorce maintenance awards:

The post-divorce maintenance is determined by the Courts through applying the same maintenance formulas to determine temporary maintenance. The Court might consider income above the $178,000 and/or deviate from the presumptive post-divorce spousal maintenance after considering the 15 post-divorce maintenance factors. The 13 temporary maintenance factors are also included in the 15 post-divorce maintenance factors. Post-divorce maintenance might be for a limited duration or non-durational. In the post-divorce maintenance statute, there is an advisory schedule based upon length of the marriage (defined as the period between the date of marriage and the date of commencement of the action) for the duration of post-divorce maintenance.

 

Post-divorce Maintenance Schedule:

  • Marriage of 0 to 15 years:  15% to 30% of the length of marriage
  • Marriage 15 to 20 years:  30% to 40% of the length of marriage
  • Marriage 20+ years: 35% to 50% of the length of marriage

When setting the duration of post-divorce maintenance, whether the Court used the advisory schedule, the Court will consider the post-divorce maintenance factors and is required to stipulate in writing or on the record the factors that were considered. The Court is expressly authorized to award non-durational maintenance in an appropriate case.

 

Child Support

The basic child support obligation to be paid by the non-custodial parent is typically based on a percentage of the combined parental income with discretion to also apply the percentage or a series of factors in determining support on income over that amount. For one child the amount is 17%, for two children 25%, for three children 29%, for four children 31%, and for five or more children, the child support award will be no less than 35%.

 

On top of the basic child support obligation, the non-custodial parent might also be obligated to pay for a portion of the child care expenses related to the custodial parent’s employment or education which would lead to employment. Health care expenses for the children are allocated between the parents based on their combined parental income. The noncustodial parent also may be directed to pay for educational expenses. However, if the amount of the basic child support obligation is unfair or inappropriate, the non-custodial parent’s pro-rata share of the child support obligation may be determined by other factors and not by the percentages mentioned above.

 

The parents may avoid the use of the percentages in determining the amount of child support by executing an agreement stipulating the amount of child support which they believe to be fair. An agreement determining the amount of child support must satisfy specific technical provisions of the Child Support Standards Act.  A lawyer can assist the parties comply with these technical provisions. Neither parent has any obligation to support a child once the child reaches 21 years of age. Child support may end before 21 years of age in certain instances such as the gainful employment of the child or the child’s willful refusal to maintain a relationship with the non-custodial parent.

 

Child support will either be awarded by a Family Court as part of a child support proceeding or by Supreme Court as part of a divorce, separation, or annulment proceeding. Even if there is no matrimonial judgment awarded, the court will make an award of child support to the custodial parent. Upon appropriate proof, child support orders can be modified on a substantial change in circumstances, the passage of 3 years, or a 15 percent change in a party’s gross income.

 

Counsel Fees

In 2010, the New York legislature amended the law to create a rebuttable presumption that counsel fees will be awarded to the spouse with less money. This enables the court to ensure that both parties are adequately represented from the beginning of the action. The parties and their attorneys are required to submit a sworn statement, or affidavit, to the court with financial information, which includes the cost of each respective attorney and allows the court to decide. Additionally, the wealthier spouse will also be presumed to pay fees of any expert witness called at trial. It is left up to the parties to agree to a sum, or a court to order a sum for counsel fees, depending on the circumstances of each individual case.

 

Matrimonial Rules of Practice

There are rules in matrimonial cases, many pertain to the client-attorney relationships as well as dictate how to expedite and streamline court process. Some of these Rules include the following:

  • Before signing a retainer, a lawyer is required to give every matrimonial client a written statement of the “Client’s Rights and Responsibilities”.
  • Representation requires a written retainer which must ultimately be filed with and reviewed by the Court
  • There are no non-refundable retainers in matrimonial proceedings. (However, minimum fees are allowed if they meet certain requirements)
  • Security interests (mortgages, confession of judgment) by your attorney must be specified in the Retainer Agreement and only are allowed by court order, after the opposing party has been given notice
  • Every sworn statement must be certified as truthful by the attorney (Most lawyers require clients to verify that the client has provided truthful information. If you tell your lawyer anything that will be contradicted by sworn statements in your case, the lawyer cannot certify anything the attorney knows to be untruthful.)
  • When a fee dispute arises between attorney and client, the client can seek to resolve the dispute by arbitration pursuant to a fee arbitration program established by the Chief Administrator of the Courts and subject to the approval of the justices of the Appellate Divisions.
  • Expedited court proceedings, referred to as “fast track” cases, will be utilized. Many cases that do not involve complicated matters (complex cases sometimes involve economically valuing closely held businesses) will be tried within 6 months after the court holds the preliminary conference. These conferences are scheduled shortly after the first legal papers get served. Expert reports and responses will be served before trials. These and other changes in the way contested matrimonial matters are handled should make the process more  effective for everyone.

Have questions or would like to make an appointment?

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