New York divorce cases are handled by Family Courts in each county.
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Requirements
New York courts may have jurisdiction over a divorce case if any of the following applies:
- Either party has been a resident for two years before the commencement of the divorce.
- The parties were married in New York, and either party has been a resident for one year before the commencement of the divorce.
- Both parties lived in New York as husband and wife, and either party is a resident at the time of the commencement.
- The cause of action occurred in New York, and both parties are residents at the time of the commencement.
Causes of action
Practically all divorces in New York are “no fault” divorces on the basis that the relationship has broken down irretrievably for a period of at least six months.
Cruel treatment, abandonment, imprisonment, adultery, and separation may also technically be grounds for a divorce, but are largely obsolete today and are almost never used.
Legal separation is also available in the event of abandonment, cruel treatment, neglect, or adultery.
Child Custody
New York courts grant custody (decision-making authority) based upon the best interests of the child given the totality of the circumstances. The wishes and preferences of older children are generally respected.
Joint custody is generally preferred when the parents have an amicable relationship, while sole custody is generally preferred when the parents have an antagonistic relationship. Courts generally take a very dim view of parental alienation, and give weight to the prospective custodial parent’s willingness to foster a relationship with the other parent.
Parenting time is considered separately from decision-making authority. The non-custodial parent is usually entitled to frequent and regular parenting time in order to allow the child to maintain a relationship with both parents.
While allegations of domestic violence and abuse must be considered, false allegations may be considered as a basis for unfitness to be a parent.
Family Court judges are given great deference in deciding custody, and appellate courts will generally not overturn their decisions unless there is a lack of a sound and substantial basis.
New York courts are usually reluctant to let parents move out of state once a custody order is in effect. A relocation typically requires the parents to negotiate a new custody and visitation agreement.
Child Support
Like other states, New York has a statutory child support formula based on the parents’ income. This formula will usually apply to determine child support, unless the parties have a combined income above the statutory cap ($154,000 as of March 2020).
Spousal Maintenance (Alimony)
New York has two different formulas for temporary spousal maintenance while the divorce case is pending. If the payor is also paying child support as a non-custodial parent, maintenance is equal to 20% of the payor’s income minus 25% of the payee’s income. Otherwise, maintenance is equal to 30% of the payor’s income minus 20% of the payee’s income.
In either case, temporary maintenance is capped at 40% of the spouses’ combined income minus the payee’s income, and the payor’s income for purposes of the calculation is capped at $192,000.
Courts may deviate from the temporary maintenance formulas if the payor makes more than $192,000 a year, or if the results of the formulas are unjust or inappropriate.
The formulas also generally form the starting point for an award of maintenance following the divorce, but courts have significant discretion to deviate from the formulas for a variety of reasons.
Property Division
Marital property is to be equitably distributed between the parties upon divorce. All property acquired by either spouse during the marriage, however it is legally titled, is generally presumed to be marital property. The main exceptions are personal injury awards, inheritances, and gifts from a third party, which may be kept as separate property as long as they are not commingled with marital assets or re-titled in the spouses’ joint names.
Our Fees
Every divorce case is different. Some cases can be resolved quickly and easily, while others require a large amount of attorney effort to resolve. Our firm’s “rule of thumb” is for clients to budget about $2,000 per month for attorney’s fees and costs while the case is pending. A typical contested case with minor children and financial issues that can be resolved before trial will usually cost $8,000 to $12,000 over the course of 6 to 8 months, while a complex case that goes to trial may cost $20,000 to $25,000 over the course of 9 to 12 months.
New York has a rebuttable presumption that interim (pendente lite) attorney’s fees can be awarded to the economically disadvantaged spouse. Attorney’s fees may be reimbursed at the end of the case based upon financial circumstances or a party’s frivolous conduct during the case.