Divorce is rarely an easy decision but sometimes there is no other option but to separate. There is a lot to consider though, especially if you have children or joint property. Then the process gets a lot more complicated. It helps if you can work together, but what if you can’t? What if you can’t agree on where the children live? Who should file first? How long will it take? 

So many questions.

If you are seeking a divorce in New York, here’s what you need to know.

What Forms of Marriage Are Recognized in New York?

New York law recognizes various forms of marriage, including same-sex and other non-traditional unions. Domestic partnerships are also considered to be a legal union under this law, albeit it does not afford the same advantages as marriage.

Common law marriage is not recognized anywhere in the state. However, if a couple established a common law marriage while living in another state that grants it, New York will recognize that union as a marriage. This means that the dissolution of that union must be done legally and ending a common law marriage from another state can be a complex process when carried out in New York.

Domestic Partnership vs. Marriage

When two people live together but are not married they can file a notice of domestic partnership with the New York Secretary of State. This was often how same-sex couples would become legally joined before NY law was amended in 2011, making it legal for them to marry. 

There are a few differences between marriage and a domestic partnership in New York, the primary one being that domestic partnerships are not recognized by the federal government while marriages are. This means that there are certain benefits that couples who are in domestic partnerships are denied access to. Two substantial benefits are spousal immigration status and Social Security survivor benefits.

A domestic partnership is terminated by appearing in person and filing a Termination Statement with the City Clerk. If only one partner has signed the statement, then they must provide proof that they notified the other party of the termination. This is done by Certified Main, Return Receipt Requested and it must be presented with the Termination Statement. The Termination Statement may also be submitted by mail.

Does it Matter Who Files First?

Generally speaking, it does not matter who files for divorce first in New York. There is no race to the nearest divorce court with the “winner” taking home all the spoils. Either party is entitled to file for divorce and both parties will receive equal treatment by the court regardless of who filed. 

The party who files is called the Petitioner and the other party is the Respondent. 

There are a few times, though, when the filing first may give an advantage:

  • If the other party was involved in wrongdoing and the spouse has evidence of the actions
  • If the individual is seeking a temporary order for custody of the child or children
  • If the individual is seeking a temporary order for child support

It is important to note that the Supreme Court handles divorce cases in New York. Divorce is not handled by Family Court, although Family Court does handle child custody, support, and visitation issues. 

The judge presiding over the case can require the other party to pay for court costs and attorney’s fees in some cases. Filing first does not guarantee this, nor does it rule it out. An experienced family law attorney can advise you on the options available as well as your rights while aiding you in navigating the legal process.

What are the Residency Requirements?

In order to file for a divorce in New York, there are residency requirements that must be met. There are several ways that this can be accomplished:

  • At least one of the spouses must have been living in the State of New York continuously for a minimum of two years prior to starting the divorce case
  • At least one of the spouses must have been living in the State of New York continuously for a minimum of one year prior to starting the divorce case and:
    • They got married in the State of New York, or
    • They lived in the State of New York as a married couple, or
    • The grounds on which they are filing for divorce occurred in the State of New York
  • Both spouses are residents of the State of New York on the day that the divorce is filed or started and the grounds on which the divorce is being filed happened in the State of New York

How Long Does Divorce Take in New York?

Once the required separation time has passed, the time it takes to get a divorce in New York depends on whether both parties agree on all the terms. If they agree, then the primary factors regarding length are:

  • How busy is the Court
  • How quickly the other party can return the documents required for the divorce 

This can mean that an uncontested divorce can be resolved in six weeks, or it can take six months. Sometimes it can take even longer. The bottom line is, there is no waiting period in New York. On average, where both parties are in agreement, it takes about 3 – 6 months for a divorce to be finalized by the court.

If they do not agree, it could take a lot longer.

What are the Grounds for Divorce in New York?

In October of 2010, New York became the final state in the U.S. to allow No-Fault as a divorce ground. As a result, most divorce actions are filed as No-Fault.

The seven grounds for divorce available in New York include:

  • Irretrievable breakdown in the relationship for a period of at least 6 months
  • Cruel and inhuman treatment
  • Abandonment
  • Imprisonment
  • Adultery
  • Divorce after a legal separation agreement
  • Divorce after a judgment of separation

How Long Do You have to be Separated Before You Can File for Divorce in NY?

In New York, married couples do not have to be legally separated before getting a divorce. Legal separation is good for dealing with issues like custody, visitation, child support, financial issues, and who is allowed to stay in the marital residents.

Some grounds for divorce do require that the parties live separately and apart for a certain amount of time. The length of separation depends on the grounds on which the petitioner filed for divorce. 

  • Abandonment – The spouse of the complaining party has been absent for at least one year.
  • Confinement in Prison – The spouse is confined in prison for at least three consecutive years after getting married.
  • Irretrievable Breakdown of the Relationship – The breakdown must have persisted for a minimum of six months.

What is a Spouse Entitled to in a Divorce in New York?

Division of marital property has been largely misrepresented in the media. Contrary to popular belief, the wife does not always get everything. This is even more so in New York which is an equitable distribution state, not a common law or community property state. This includes separate property, marital property, and marital debt – none of which is always automatically split equally.

There are a number of factors that must be considered such as the length of the marriage, each spouse’s earning power, and the custodial parent’s needs which include occupying or owning the marital residence.

In some cases, spousal support is awarded to one of the parties. This too depends on certain factors.

Contested vs. Uncontested NY Divorce

The best case scenario is that both parties enter into the divorce in full agreement of child custody and support and other issues, but that isn’t always how it works out. However, it is not uncommon for a divorce to start out with both parties in full agreement, only to become contested as the various decisions are brought forth like spousal support, debt division, and division of assets. Then again, a contested divorce can become uncontested as the parties work together to resolve their disagreements.

An uncontested divorce means that both parties are in full agreement on the major issues while a contested divorce means that the parties do not agree on one or more of the major issues and will rely on the court for resolution. 

Divorce when Children are Involved

Divorce with children is not easy. There are a lot of things to consider such as custody, child support, and visitation. These issues all need to be worked out before the judge will sign the judgment of divorce.

Before the divorce is granted several things must be agreed upon”

  • Child support for all the children of the marriage
  • Custody and visitation for all children of the marriage who are 17 years old or younger

Custody of the children as well as visitation and child support may be handled as part of the divorce process, but it may take some time because it will all need to be resolved before judgment is rendered.

Although divorce is handled in the New York Supreme Court, Family Court may provide some help in working out issues regarding custody, visitation, and support. Overall, the focus will be on what is in the best interest of the children. That is what the judge will ultimately look for and which will have to be satisfied before he or she signs the final judgment.

This can mean that divorce takes a little longer than usual and while the partners may want to hurry and end the marriage, the welfare of the children must remain a priority and that is one of the duties of the court. Once those things are resolved to the court’s satisfaction, then the divorce judgment will be granted.

If you are seeking a divorce in New York, it is wise to get an attorney who is experienced and understands all the complexities of the legal process of divorce.

The Litvak Law Firm provides compassionate, professional representation for all areas of divorce and family law. Our experienced, knowledgeable legal team will work with you to ensure that your rights are protected, and you get the best possible outcome.

Call 718-989-2908 today for a free consultation.