Divorce FAQ

DIVORCE FAQ

How do I start a divorce action?

A divorce action is started by filing a Summons with Notice or Summons and Complaint with the County Clerk’s Office. These are formal documents that let your spouse know that you are starting an action for divorce and they tell the Court and your spouse what it is you are asking for in the divorce action.

What are the grounds for divorce?

There are currently 7 grounds for divorce in New York. Most recently, the Legislature enacted a “no-fault” ground for divorce, which requires that the relationship between you and your spouse has been broken down irretrievably for a period of at least 6 months.

(Domestic Relations Law § 170 [7]).

In general terms, the other grounds for divorce are:
– [1] cruel and inhuman treatment;
– [2] abandonment of one spouse by the other for a period of at least 1 year;
– [3] confinement of your spouse in prison for at least 3 consecutive years after your marriage;
– [4] adultery;
– [5] you and your spouse have lived apart pursuant to a decree or judgment of
separation for at least 1 year;
– [6] you and your spouse have lived apart pursuant to a written separation agreement for at least 1 year. (Domestic Relations Law § 170)

What are the common issues in a divorce?

  • Custody & Child Support: if you and your spouse have children, then custody and visitation of the child(ren) and child support may be an issue. Please see the following sections for more information about custody and child support.
  • Maintenance: also known as alimony or spousal maintenance, may be an issue in your divorce case. The Court will look at a variety of factors to determine if either spouse is entitled to receive maintenance from the other, the amount of the maintenance, and the duration of the payments.
  • Property and Assets: marital property will be equitably distributed in the divorce action. This will include, among other things, real property, personal property, vehicles, bank accounts, life insurance and retirement/pension accounts.
  • Debts: marital debts will also be equitably distributed in the divorce action. This will include, among other things, mortgages, loans, and credit cards.
  • Enhanced Earnings: if you or your spouse earned certain educational/vocational degrees or licenses during the marriage, this may be an issue in your divorce action.
  • Each divorce case is different and the facts of your specific case will determine what issues are involved.

Will I have to show my finances to my spouse and will I get to see my spouse’s finances?

Yes, the law requires each spouse to fill out a Statement of Net Worth, which will list all of that spouse’s expenses, income, assets, and debts/liabilities.

How long will it take to get divorced?

Unfortunately, there is no answer for this question. The amount of time it takes for a divorce to be finalized changes with each case.

What if my spouse doesn’t follow the terms of the divorce?

Then you may have to bring an enforcement proceeding in Court to ask the Judge to direct your spouse to comply with the divorce terms.

CHILD CUSTODY/VISITATION FAQ

How do I start a custody or visitation proceeding?

  • If you and your spouse are currently going through a divorce, the issues of custody and visitation will be dealt with in the divorce action.
  • If you and your child’s other parent are not married or are not going through a divorce, then a custody or visitation proceeding is started by filing a petition in Family Court.

What types of custody are there in New York?

There are generally three types of custody in New York:

– (1) Sole custody;
– (2) Joint custody with the child living with one parent most of the time; or
– (3) Joint shared custody with both parents having equal time with the child.

What is the difference between sole and joint custody?

The main difference between sole and joint custody is who makes the important decisions for the child, including medical, educational, and religious. Generally, in sole custody arrangements, the parent with sole custody has full power to make those decisions relating to the child. In joint custody arrangements, the parents are supposed to consult with each other and make those decisions together.

Who will get custody of our child(ren)?

In New York, the Courts decide custody/visitation issues by looking at what is in the best interest of the child. The Courts in New York do not presume or automatically award custody to the Mother or the Father, and instead look at a variety of factors to determine what type of arrangement will be in the child(ren)’s best interest.

Will the Judge consider what my child(ren) wants?

  • Depending on the age of your child(ren), the Judge may consider your child(ren)’s view in making his/her decision. However, the Judge will consider a variety of factors and the Judge does not have to follow the child’s wishes.
  • In a contested custody/visitation case, the Judge may appoint an Attorney for the Child to advocate for the child(ren)’s position.

How does a custody/visitation case end?

There are two ways your custody/visitation can end: (1) with an agreement between you and the other parent; or (2) with a decision from a Judge after a hearing.

What if the other parent isn’t following the custody/visitation order?

If the other parent isn’t following the custody/visitation agreement or order, you may be able to file a violation or enforcement proceeding.

What if I want to change a current custody or visitation order?

A modification proceeding may be necessary to change the current custody or visitation order. The Court generally requires that there has been a substantial change in circumstances which demonstrates a real need to modify the current arrangement to ensure the best interest of the child(ren).

CHILD SUPPORT

How do I get child support?

You can file a petition with Family Court asking that the other parent pay you child support.

Will I have to pay child support?

  • Generally, the parent with whom the child lives a majority of the time is entitled to receive child support from the other parent.
  • If you and the other parent each have the child for an equal amount of time, then normally the parent with the higher income will have to pay child support to the other parent.

How much will I receive/have to pay for child support?

  • In New York, there is a part of the law called the Child Support Standards Act which sets up a formula to determine the amount of child support considering, among other things, the parents’ incomes. The Court may grant a “variance” from the set formula based on certain factors.
  • The current statutory formula percentages are as follows:
    • One Child 17%
    • Two Children 25%
    • Three Children 29%
    • Four Children 31%
    • Five + Children no less than 35% What about day care expenses?
  • If the custodial parent is working or going to school, the Court may require each parent to pay his/her pro-rata share of child care expenses. These pro-rata shares are normally calculated by determining what proportion of the parents’ combined income each parent’s income makes up.

What about health insurance and uninsured health expenses of my child?

  • The Court may require one parent to provide health insurance for the child and direct the other parent to pay his/her pro-rata share of the child’s health insurance premium.
  • The Court may require both parents to pay his/her pro-rata share of any health expenses of the child that are not covered by insurance.
  • These pro-rata shares are normally calculated by determining what proportion of the parents’ combined income each parent’s income makes up.

How will the child support be paid?

Child support can either be paid directly from one parent to the other or through the Child Support Collection Unit, which will receive the money from one parent and pay it out to the other parent.

What if the other parent isn’t paying the child support?

If the other parent isn’t paying child support and you have a child support order, you can file a violation petition in Family Court.

How do I change my child support order?

To change a child support order, you will need to file a petition for modification with the Family Court. You will then have to prove that one of the legally recognized reasons for modification are present in your case.