A divorce is the legal termination of a marriage between two individuals, called spouses. Once the divorce is finalized, the individuals can remarry other individuals should they choose to do so.
In the United States, each state requires the individual who is filing for divorce to be a resident of the state in which they are filing. The requirements for residency may vary but usually require the individual filing to reside in the state between 6 months and 1 year.
There are two different main types of divorce, fault divorce and no fault divorces. The availability of these two types of divorces depends on the state.
Divorce proceedings are different in every state. The majority of states have adopted a no fault divorce process. Some states, however, still have a fault-based divorce system.
In states that have a no fault divorce system, the individuals are not required to show that there was any wrongdoing or fault on the part of either of the spouses in order to obtain a divorce. In certain states, the spouses are required to declare in the divorce pleadings that they are no longer able to get along. In some other states, the parties must reside separately for a specified period of time, which can be months or years, prior to filing for their no fault divorce.
In a fault divorce, the individual that is filing for the divorce must include a reason why the divocre should be granted. Fault rules or justifications that are accepted in this type of divorce varies by state. However, common fault divorce reasons include:
- Cruelty, or the infliction of emotional or unnecessary pain;
- Desertion for a period of time;
- Incarceration for a number of years; or
- The physical inability to consummate the marriage.
What is a Legal Separation?
A legal separation is commonly one of the first steps which a married couple takes if they are experiencing problems in the marriage or are contemplating getting a divorce. A legal separation provides the parties with a time period in which to determine if they can or should save their marriage. The parties may also be deciding if it is best for them to permanently part ways a file for a divorce during this time.
The spouses are not considered legally separated until a separation agreement is formed and the court issues a legal separation order. Legal separation may also be called a marital separation.
The legal separation agreement outlines the particular rights and obligations that the couple agreed to follow while they are living apart. This includes issues such as how they will manage their assets, affairs, and children, if there are any.
Although a court may declare the individuals legally separated, it does not mean that they are divorced. They remain married and are not permitted to marry other individuals.
It is also important to note that a legal separation does not necessarily require the individuals to reside in different residences. It is possible for the individuals to reside in the same place and still be considered legally separated.
An important component of a legal separation is that a binding legal agreement is formed, which allows a family court to enforce the agreement if one party violates it. In some cases, individuals may also use a legal separation to get around religious rules that prohibit a divorce.
What is the Difference Between a Divorce and Separation in New York?
In New York, married couples can file for a legal separation. As noted above, a legal separation provides individuals with an alternative to filing for a divorce when the spouses no longer desire to live together.
The majority of the issues that are settled in a divorce can also be settled in a legal separation. As previously noted, the legal separation process does not dissolve the marriage and the parties remain married to one another. Therefore, they cannot legally marry other individuals.
In New York, spouses are able to obtain a legal separation by a written agreement made by the parties or by requesting a judgment of legal separation from the court. If the couple is legally separated for over one year, that would be considered legal grounds for a divorce.
New York is a no fault divorce state. The Supreme Court of New York is the only court in the state that handles divorce cases.
Supreme court judges are the only individuals who can legally grant divorces. Individuals wishing to file for a divorce in New York should go to the Supreme Court in the county in which they now reside.
What Paperwork Do You Need to File for Divorce?
Even if an individual is filing an uncontested, the process is still complicated in New York. The first form an individual will need to complete is the Summons with Notice (Form UD-1) and a Verified Complaint (Form UD-2).
The Summons is the form which starts the divorce process and names the spouses as plaintiff and defendant. Both of these forms require the individual filing to provide a substantial amount of information.
After filling out the forms, the individual filing is required to take 2 additional copies to the Clerk’s Office and file those. The Clerk will provide the individual with an Index Number and a filing date. The individual will be required to pay a filing fee in order to receive an Index Number.
The individual filing is then required to serve the summons and complaint on the other spouse. This must be done within 120 days after the filing date.
What is Community Property vs. Separate Property?
New York is an equitable distribution state, not a community property state. In community property states, property that the spouses acquire during the marriage is considered to be owned jointly between the two spouses and is divided equally when they divorce.
In equitable distribution states, such as New York, the court attempts to make the distribution of property that was obtained during the marriage fair. The court will take into account each spouse’s contributions to the marriage as well as their needs following the divorce.
The following factors are considered by the court when dividing property:
- The income and property of each spouse on the date of their marriage and on the date of their divorce;
- The financial needs of both individuals;
- The age of each individual; and
- Whether alimony will be awarded to either party.
What Should You Do If There are Children Involved?
In a divorce in the State of New York, if there are children and child custody is an issue, the court is granted broad discretion in considering the child’s best interest. The law requires the court to only consider what will encourage the happiness and well being of the child as well as the facts and circumstances of the specific family situation.
However, if the spouses can reach an agreement regarding these issues, that agreement will control the custody situation and the court will not be required to decide. With regard to child support payments, pursuant to New York’s Child Supports Standards Act, child support payments are paid by the non-custodial parent to the custodial parent.
Do You Need to Pay Alimony?
Alimony in New York State is called maintenance. If there is not an agreement between the parties, the court may award alimony. The court will take into consideration:
- The standard of living the spouses had during the marriage;
- Whether the individual seeking alimony lacks sufficient property and income to provide for their needs;
- Whether one party has enough property or income to pay alimony to the other party; and
- The circumstances of the case and of the individual parties.
Where Can You Find the Right Divorce Lawyer?
If you are considering a divorce in the State of New York, it is important to have the assistance of a New York divorce lawyer. Divorces are often difficult and emotionally taxing issues.
It is important to have a lawyer during the divorce process to ensure that your rights are protected and that you receive an equitable amount of your marital property. Your attorney will review your situation, advise you regarding divorce laws in New York, and represent you any time you are required to appear in court.