A divorce in New York is also referred to as a Matrimonial Action. The spouse bringing the action is known as the plaintiff, and the other spouse is known as the defendant.
To file for divorce (or annulment or legal separation) in New York the following requirements must be met:
A New York State Supreme Court is the only type of court that handles divorce cases and a Supreme Court judge is the only person who can legally grant a divorce. To initiate a divorce action, the Plaintiff, spouse initiating a divorce action, will need to buy an Index Number at the County Clerk's office and file a Summons with Notice or a Summons and Verified Complaint in the Supreme Court in the county where either spouse lives.
Copies of the paperwork must be served on the Defendant, other spouse, to give notice that the Plaintiff has started a divorce action.
An Index Number is a unique number assigned by the County Clerk's office to every action or proceeding commenced within the New York State Supreme Court.
There are special proceedings to dissolve a marriage on the ground of absence if the petitioner is a resident of New York and has been so for one year immediately preceding the commencement of the special proceeding; the matrimonial domicile at the time of the disappearance of the absent spouse was within the state; and the absent spouse has been gone for five successive years without giving any indication to his/her spouse that he/she is still alive.
In a divorce action, the final judgment shall contain a provision that each party may resume the use of his/her pre-marriage surname or any other former surname.
New York was the last state to allow for no-fault divorce grounds. Prior to the new law for no-fault divorce which took effect in October, 2010, the only way to obtain a divorce without proving fault was to first live apart for a year and agree to settlement terms.
The statutory grounds for divorce in New York are now as follows:
If a couple wants use to grounds that the marriage is irretrievably broken, one spouse must make this claim under oath. In addition, to receive a divorce decree under these grounds, the couple must reach an agreement regarding distribution of marital property and debt, spousal support, child support, custody and visitation, and payment of related fees and expenses, or the court must make determinations regarding these issues and they must be incorporated into the judgment of divorce.
In order to obtain a divorce under grounds of adultery, the following must be true:
Either party has the right to trial by jury on the issues of the grounds for granting the divorce.
An annulment establishes that a marriage is not legally valid. The following situations are grounds for annulment.
In an action to annul a marriage, there is a right to trial by jury of all the issues of fact, unless the action is founded on the grounds of physical incapacity. Proof of any of the alleged grounds must be provided to the court to obtain an annulment.
New York is an equitable distribution state. Marital property shall be divided in a fair and equitable fashion. If the spouses cannot reach an agreement on property division and debt and doesn't have a prenuptial agreement regarding these issues, the court will make the determination.
Ownership of separate property shall remain the same. Marital property will be distributed equitably with consideration of the following criteria:
Spousal support is decided on a case-by-case basis. When determining whether to award spousal support, the court reviews the following factors.
Support may be temporary or permanent. When deciding what amount to award and for how long, the court considers the following criteria:
Child custody is determined based on the best interests of the child. There are two basic issues in regards to custody: which parent the child will live with (physical or residential custody) and who will make the decisions on behalf of the child(ren) concerning health, education, religion, and general welfare (Legal Custody). Joint Legal Custody is the most common form of custody. This means the child(ren) live with one parent (Residential Custodian) and the other parent has visitation rights. However, both parents share in decisions regarding the child(ren)''s health education, religion and general welfare.
The court reviews the following factors when making decisions regarding custody and visitation.
New York courts also consider the refusal of a parent to permit visitation and/or the parent's willingness to encourage visitation; the unauthorized relocation of the parent and child to a distant location; and making unfounded allegations of child abuse.
New York child support guidelines are based on the Income Shares Model for calculating child support.
When determining child support, the court will consider many factors, including the following:
Grounds:As in an action for marriage, when alleging adultery to obtain a legal separation it must have been committed without the procurement or connivance of the plaintiff; the plaintiff must not have voluntarily cohabitated with the defendant after learning of the adultery; no more than five years may have passed since the discovery of the adultery; and the plaintiff is not also guilty of adultery.
A legal separation is revocable at any time upon the joint application of both spouses, accompanied with satisfactory evidence of their reconciliation.
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