Divorce and Legal Separation in New York: Laws and Principles

A divorce in NYC is also known as a Matrimonial Action. The spouse bringing the actions is called the plaintiff, and another spouse is called the defendant.

Filing

A New York State Supreme Court could be the sole kind of court that handles cases of divorce and also a Supreme Court judge may be the sole individual who can lawfully give divorce.

To start a divorce, the wife or husband initiating the process have to acquire an Index Number at the County Clerk’s department and file a Summons with Notice or a Summons and Verified Complaint to the Supreme Court in the area where either partner resides.

Copies of these forms have to be handed to the defendant to notify him or her that the plaintiff has begun a divorce action.

Abandonment

In short, it is a special process of dissolving a union based on the spouse’s absence. Particular proceedings are possible if the petitioner has been for the previous 12 months and is currently a resident of New York. The matrimonial domicile during this disappearance of this missing partner should be within the state and the term of absence should be no less than for five consecutive years without any sign for his or her spouse on if the person is alive.

Spouse Last Name

At a custody action, the judgment will have a provision in which each party could resume using their pre-marriage surname or any other former surname.

Domicile conditions

To file for divorce in New York the following conditions must be met:

  1. The pair were married in the state, one of them has been living in New York for at least a year before filing and continues residing in the state when the action is submitted.
  2. The parties have lived in New York as a married couple and either party has been a New York resident when the action is commenced for at least one year before filing.
  3. The reasons occurred within the state and one of the parties has been a New York inhabitant for at least one year before submitting.
  4. One party has been a New York resident for at least two years preceding the action filing.

Lawful premises for Separation

NY has been the last state to permit no-fault divorces. Before this permission occurred in October 2010, the sole method to get a divorce without fault was to live apart for a year and consent then to settlement conditions.

The legal grounds for divorce in NY are currently the following:

  • Cruel and inhumane treatment of one spouse by another which endangers the mental or physical wellness of their spouse, and makes it unsafe to keep on living together;
  • Abandonment for 12 months or more;
  • Adultery;
  • Detention of a spouse in prison for three or more successive years;
  • The spouses have lived apart under a decree or judgment of separation for an interval of 1 or more years following the decree or ruling was released, and also a decent proof was filed by the plaintiff which he’s substantially performed all terms and conditions of this decree or ruling;
  • The spouses have lived apart for 1 or more years, under a written agreement of separation or a memorandum. Some adequate evidence has to be filed by the plaintiff to prove that she or he has substantially performed all terms of this contract. This kind of agreement can be registered at any clerk’s office in the county where either spouse resides;
  • The relationship between the spouses has broken down irrevocably for half a year.

If the last reason is used then a spouse needs to perform this claim under oath. Additionally, the pair needs to reach an agreement on the distribution of marital debt and property, spousal support, child support, divorce and alimony, and payment of all related expenses and fees, otherwise, the court needs to make determinations about these problems and so they need to be incorporated to the judgment of divorce.

As a way to get a divorce under reasons of adultery, these must be true:

  • The other partner didn’t commit the adultery or connive with the adulterant at the moment the adultery had been committed;
  • The plaintiff hasn’t forgiven the adulterant, which can be revealed by cohabiting together with the adulterant with the awareness of this adultery;
  • No more than five years have passed since the discovery of the adultery;
  • The plaintiff did not commit adultery.

Annulment: Proclaiming of a Marriage Nullity

An annulment proves that a union isn’t legally valid. These situations are the reasons for annulment.

Proof any of those alleged reasons needs to be offered to the courtroom to get an annulment.

  • Bigamy;
  • One of those spouses was below the age of permission;
  • One of those spouses is not able to comprehend the character, consequences, and effect of the union because of psychological incapacity;
  • Physical incapacity;
  • Consent for the union was caused by violence, pressure, or fraud;
  • After union, one partner got incurable mental illness, which had been lasted for five or more years.

Real Estate Splitting

New York is an equitable distribution state. Marital property is divided fairly. When the spouses can’t reach a deal on land and debt division and do not have a premarital agreement regarding the problems, the court is likely to make the decision.

Ownership of the individual property will remain unchanged. The property will probably be divided with the thought of the following factors:

  • The property and income of each party during this union, and during their commencement of the divorce process;
  • The length of the union and the age and health of the parties;
  • The reduction of retirement and inheritance rights upon dissolution of this union at the date of dissolution;
  • Any award of maintenance;
  • The liquid or non-liquid nature of all marital property;
  • The tax effect on each partner;
  • The wasteful distribution of resources by either partner.

Spousal Support

Spousal support is determined on a case-by-case basis.

Support might be permanent or temporary. When determining what level of the support and also for how long it should be provided, the court sees the following standards as accountable:

  • The length of the marriage;
  • The ability of each partner to be Self Supporting;
  • The conditions of the partners and their situation.
  • The property, such as marital property, and income of those various parties ;
  • The length of the union and the age and health of the parties;
  • The current and future earning ability of both parties;
  • The capability of the requesting partner to become self-supporting and, if appropriate, the duration of training time required;
  • Decreased or missed earning ability of the requesting partner caused by abandoned or delayed education, training, occupation, or career opportunities during the marriage;
  • The existence of children of this union.

Child Custody and Service

Child-custody is set based upon the child’s interests. There are two primary issues as it pertains to custody: where the child is going to live (residential or physical custody) and who will make legal decisions on behalf of the minor, for example, regarding health and education, religion, and basic wellbeing (Legal custody). Joint Legal Custody has become the most usual kind.

The court reports that these factors when making decisions regarding visitation and custody.

  • The consequence of the separation of siblings;
  • The opinion of the child, when the said child is old enough;
  • The amount of time the current custody arrangement is in effect;
  • Abduction or abandonment of their child(ren) or alternative defiance of the judicial routine by either of the parents;
  • The affection and care exhibited by the parents;
  • The climate in these houses;
  • The capability and availability of these parents;
  • The virtue of these parents;
  • A parent’s ability to devote some time to this child(ren) and their wants;
  • The potential academic probabilities;
  • The possible impact of a custodial switch on the child(ren).
  • The presence of the violence towards one of the parents, or family members.

New York courts consider as well the refusal of a parent to enable visitation or their openness to encourage visitation; the unapproved movement of the child and parent to a remote location; also making unfounded allegations of child abuse.

When resolving child support, the court will examine many factors, such as:

  • Financial stocks of the participants involved;
  • The level of living before the separation;
  • The physical and mental health of the minors;
  • The tax implications;
  • Educational requirements of the parents and children;
  • Other children outside the marriage if there are some.

Legal Separation

The basis for the legal separation are:

  • Cruel and inhumane treatment of one partner by another which threatens the physical or psychological wellbeing of their partner, and makes It unsafe to keep on living together;
  • Abandonment;
  • The refusal or neglect of the defendant to supply for the aid of this plaintiff in situations where the defendant is chargeable;
  • Adultery;
  • Successive three years of Imprisonment of a spouse after the union.

As with an action for the matrimony, if claiming adultery it must have been committed with no procurement or connivance of the plaintiff; the plaintiff shouldn’t have willingly cohabitated with the defendant; no more than five years might have passed since the detection; as well as the plaintiff isn’t guilty of adultery.

A legal separation is reversible at any moment upon the combined application of both partners, accompanied by adequate proof of the reconciliation.