Frequently Asked Questions
What is the difference between a divorce and a legal
Divorce is the legal process of terminating a marriage. Once a divorce is finalized, the couple will no longer be considered married in the eyes of the law. Furthermore, once a couple is divorced, they are no longer considered to be in the family, and henceforth ineligible to receive benefits from one another including health insurance. Once a couple is divorced, they must reapply for a marriage license if they wish to rekindle their relationship.
Legal separations are not as absolute as divorces because they do not terminate the marriage. During a legal separation, couples separate for a specified amount of time, but have the option to get back together without having to reapply for a marriage license. If a couple legally separates for a set period of time, and then decides to still go through with the divorce, it is then that they file a petition to begin the divorce process.
What is the difference between marital and separate property?
Marital property refers to all assets and properties that were acquired or accumulated by either spouse during the marriage. Marital property is subject to equitable distribution during the divorce proceeding. Common examples of marital property include
real estate, pensions, bank accounts, money, time shares, furniture, motor vehicles, jewelry, debt, stocks, etc.
Separate property refers to any assets, properties, or possessions that were acquired either before the marriage commenced, or after the divorce. Common examples of separate property include inheritances, personal injury awards, and gifts from a third party. In New York, separate property is not subject to equitable distribution during a divorce proceeding. However, if one spouse acquired an asset before the marriage, and that asset accumulated interest or value during the marriage, then the interest or value earned during the marriage would be subject to equitable distribution, not the asset itself.
How is property divided?
Because New York is not a "community property" state, all assets, properties, and possession acquired by either spouse during the marriage are subject to equitable distribution. Equitable distribution refers to the process of dividing and splitting marital assets and property. In order to divide and distribute marital assets and property as fairly and evenly as possible, the Court will consider many factors, such as:
- The length of the marriage
- The amount of property to divide
- The types of assets and properties and how they were acquired
- Each spouse's financial needs
- Each spouse's earning capacity
- Each spouse's age and health
- The presence of children and their ages
Do I have to have legal grounds in order to file for divorce in New York?
Yes. Because New York is not a "no fault" state, couples wishing to divorce must have legal grounds. New York does not acknowledge and will not grant a divorce based on "irreconcilable differences." The following circumstances are considered acceptable grounds for divorce in New York:
- Abusive, cruel, or inhumane treatment or behavior
- Abandonment for a period of at least one year or longer
- One spouse has been incarcerated for three years or longer
- One or both spouses refuse to engage in sexual relations for a period of one year or longer
If a couple does not have legal grounds for divorce, they can file for a legal separation agreement, consent to the terms of the agreement and live apart for a period of at least one year, and then file for divorce after that time has passed.
Are there residency requirements for divorce in New York?
Yes. Before a couple will be granted a divorce, the must successfully meet the state's residency requirements. The residency requirements for divorce in New York are as follows:
- At least one spouse must be a New York resident for at least one year before filing for divorce
- The couple was married in New York
- The couple lived as husband and wife in New York state for at least one year before filing for divorce
- The grounds for divorce took place in New York state and both parties were residents at the time of the commencement of the action for divorce.
Does New York offer common law marriages?
Common law marriages are not valid in the state of New York. However, New York will recognize common law marriages that are valid in another state.
determined in New York?
In New York, the non-custodial parent is required to pay child support to the custodial parent. Child support is determined by multiplying the combined income of both parents (up to $80,000) by the appropriate percentage. This percentage is determined by how many children require child support. One child is 17%, two children is 25%, three children is 29%, four children is 31%, and five or more children is 35%. After these figures have been multiplied by the respective percentages, the result is allocated between the parents according to their share of the total income. When the combined parental income exceeds $80,000, the court has the discretion to require one or both parents to make additional contributions.
How long are people required to pay child support for?
In New York, a parent is only required to pay child support until the child reaches the age of 21. In many cases, parents with children in college will continue to pay child support until the age of 22. In addition, a parent can choose to continue paying child support past the age of 21 if they wish to do so.
What is the benefit of signing a
or postnuptial agreement?
Prenuptial and postnuptial agreements are written documents that clearly define how each spouse's separate assets and property will be divided and allocated if the marriage ends in divorce or death. There are many advantages to entering into a pre or postnuptial agreement. Prenuptial and postnuptial agreements protect:
- Each spouse's separate property, possessions, and assets
- The best interest and safety of the family
- Estate rights for children
- Financial security
- Heirlooms and inheritances
- Pension, retirement funds, stocks, bonds, trusts
- Money or interest earned from independent or family owned businesses
- Money earned from an enhanced education or degree