New York provides both fault and no-fault grounds for divorce under NY Family Court Act Section 170. Fault grounds include adultery, cruel and inhuman treatment, abandonment for one or more years, imprisonment for three or more years, and living separate and apart pursuant to a separation judgment or agreement for one or more years. The most commonly used ground is no-fault divorce based on an irretrievable breakdown of the marriage. For the irretrievable breakdown ground, the marriage must have been broken down irretrievably for at least six months. This requirement is satisfied if either party affirms that the marriage relationship is broken and there is no reasonable prospect of reconciliation.
To file for divorce, one spouse files a Summons with Notice or Summons and Complaint in the Supreme Court in the county where either spouse resides or where they lived as a married couple. The defendant must be served with the summons and either a notice stating grounds for divorce or a detailed complaint. The defendant has 30 days to respond. Uncontested divorces with mutual agreement on all terms can proceed with simplified procedures and lower fees. Filing fees range from $335 for uncontested divorces to $430 for contested cases when a Request for Judicial Intervention is filed.
New York has flexible residency requirements that can be met by: both spouses being domiciled in New York when filing (residency in either party's county is sufficient); or one spouse being domiciled in New York for at least two years immediately before filing; or one spouse being domiciled in New York for at least one year before filing if the marriage was solemnized in New York, both spouses lived in New York as a married couple, or the cause of action arose in New York. For no-fault divorce, one spouse must affirm that the marriage has been irretrievably broken for six months before or after filing. Separate and apart grounds require proof of actual separation for one year.
New York follows the equitable distribution model under NY Domestic Relations Law Section 236. All property acquired during the marriage is classified as marital property and is subject to equitable distribution, regardless of whose name is on title. Property owned before the marriage, inherited property, or property received as a gift remains separate property. Marital property is divided in a manner that the court deems just and proper, considering all relevant circumstances. Equitable does not mean equal, and one spouse may receive more than half the marital property based on specific factors.
Courts consider the length of the marriage, the age and health of both parties, their income-earning capacity and employability, the ability of each party to be self-supporting, and the time and efforts needed for the custodial parent to gainful employment. The court examines the ability of the non-custodial parent to provide financial support. The court also considers whether one spouse's career was advanced at the expense of the other spouse's career development. The standard of living established during the marriage is relevant. Additionally, the court may consider the contributions of each party to the marital property and any agreements between the parties regarding property division. Tax consequences and the location and liquidity of marital property are also factors.
New York courts apply the best interests of the child standard under NY Family Court Act Section 651. The court considers the child's preference if old enough to express a meaningful one, the ability of each parent to provide love, affection, and guidance, and each parent's ability to provide a safe and stable home environment. The court evaluates each parent's involvement in the child's life, educational history, and ability to support the child's emotional needs. The court considers whether the child has special needs requiring specific parental skills. The willingness and ability of each parent to encourage a relationship with the other parent is examined. Any history of domestic violence, substance abuse, or child abuse by either parent is considered.
New York recognizes sole custody where one parent has both legal and physical custody, joint custody where both parents share legal or physical custody or both, and various parenting time arrangements. Joint custody is increasingly encouraged when both parents are capable and involved. The court issues a parenting plan specifying custody arrangements, decision-making authority, visitation schedules, and provisions for holidays and school breaks. Custody arrangements may be modified if there is a substantial change in circumstances affecting the child's best interests or either parent's ability to parent.
For no-fault divorce based on irretrievable breakdown, the marriage must have been broken down irretrievably for at least six months. This requirement is satisfied by either spouse affirming in a sworn statement that the marriage relationship is broken and there is no reasonable prospect of reconciliation. The six-month period can be measured before filing or anytime after filing. Once one party provides the affirmation, the other party has an opportunity to file a contrary affirmation, which tolls further proceedings for 30 days to allow for possible settlement or reconciliation.
For no-fault divorce based on irretrievable breakdown, you do not need to live separate and apart. Separation is only required if you are using the separate and apart ground, which requires one year of actual separation in different residences. For no-fault divorce, the emphasis is on the parties' affirmation that the marriage is irretrievably broken, not on physical separation. However, if you cannot agree on grounds, you may need to prove one year of actual separation or another fault ground to obtain a divorce.
New York law establishes statutory guidelines for spousal support calculation based on income levels and length of marriage. However, courts may deviate from the guidelines for good cause, considering factors such as the presence of dependent children, the ability of each party to become self-supporting, and whether one spouse advanced the other's career at their own expense. Spousal support may be temporary (during divorce proceedings), durational (for a term related to length of marriage), or permanent (in long marriages or where the recipient cannot be self-supporting).
Yes. Custody orders can be modified based on a substantial change in circumstances. Either parent can petition for modification if circumstances have changed significantly since the custody order was entered, such as a parent's relocation, job change, health issues, or changes in the child's needs or preferences. The petitioner must prove the change in circumstances affects the child's best interests. The court will then apply the best interests standard again to determine if the custody arrangement should be adjusted.