Divorce in New York

Getting divorced can be a difficult process that takes an emotional, physical and financial toll on both you and your spouse. In some cases, it can be a significant shock. In others, it’s the result of several weeks, months or years of thinking about ending your marriage.

As one of the country’s most populous states, New York is home to tens of thousands of divorce cases every year. Many of these divorces are uncontested without any significant issues, while others are contested divorces in which spouses can’t agree on certain factors.

While there’s no need to master every aspect of New York divorce law to end your marriage, if you’re considering divorce or have been served with divorce papers by your spouse, learning the basics of New York’s divorce laws could help you achieve a better outcome.

Below, we’ve explained how divorce works in New York, from the legal process of ending your marriage to divorce statistics. We’ve also covered important factors such as alimony (spousal maintenance) and child support that could play a part in your divorce.

New York Divorce Statistics

New York has one of the lowest divorce rates in the country, with just 4.97% of people aged 30 or under choosing to end their marriages. In fact, for young married couples, New York has the lowest divorce rate in the entire United States.

Interestingly, New York’s neighbors also have low divorce rates. Pennsylvania, Massachusetts, New Jersey and Connecticut all make up the five states with the lowest divorce rates for young, under-30 couples.

Like in other economically prosperous states such as California, part of this is likely due to the higher cost of living in New York and its effects on the cost of getting divorced. Until recently, it was not possible to get a no-fault divorce in New York, further increasing costs for spouses.

Did You Know?

• New York is a mixed state, meaning it allows for fault and no-fault divorce. Unlike many other states, New York did not abolish fault divorce and allows spouses to seek divorce for fault grounds such as abandonment or adultery.
  
  
• Interestingly, New York was the final state to enact no-fault divorce, with the New York State Senate only approving legislation allowing couples to separate by mutual consent in 2010.
  
  

Is New York a Fault or No-Fault State?

As of 2010, New York is a no-fault divorce state, meaning that you or your spouse can initiate the divorce process without providing a fault-based ground.

To initiate a no-fault divorce in New York, either you or your spouse can state that the marriage has had an “irretrievable breakdown” that has lasted for six months or longer, and that there is no chance of the marriage ever recovering.

In a no-fault divorce, you and your spouse will need to settle issues such as property division, child custody, spousal maintenance and visitation before the court will give you a divorce. In a contested divorce, these issues may be decided on by the court.

Unlike many other states, which are purely no-fault, New York also allows spouses to divorce using fault-based grounds. The seven grounds for divorce in New York are:

• Irretrievable Breakdown. We’ve explained this one above. To divorce this way, you’ll need to explain to the court that your relationship with your spouse is broken and can’t be fixed, with the breakdown lasting for six months or longer.
  
  
• Cruel and Inhuman Treatment. If your spouse has been physically, emotionally or verbally abusive during your marriage and this abuse has put you in danger (either physically or mentally), it may be accepted as grounds for divorce.
  
  
• Abandonment. To divorce due to abandonment, a spouse must have abandoned the other for a period of one year or longer. It’s also possible to divorce over “constructive” abandonment, in which one spouse refuses to have sexual relations with the other for one year or longer.
  
  
• Imprisonment. If one spouse has been in prison for three years or longer continuously, and their imprisonment started after the marriage began, this can be a ground for fault divorce.
  
  
• Adultery. A couple can divorce in New York due to adultery if the Plaintiff (the spouse filing for divorce) can show that their spouse committed adultery in the last five years, or if they committed adultery during the same time period.
  
  
• Legal Separation Agreement. If you and your spouse create and follow an “agreement of separation” and live separately for a period of at least one year, this can often be used as grounds for divorce.
  
  This type of divorce is sometimes referred to as a “conversion divorce,” as it’s possible to convert a Separation Agreement into a divorce after one year in many cases.
  
  
• Judgment of Separation. If a court has given a “judgment of separation” that has been active for at least one year, this can be used as grounds for divorce. This is uncommon and is only rarely used by spouses, with other grounds far more common.

Property Division in New York

Working out how to divide your property, from real estate to savings, is often one of the hardest aspects of getting divorced. Just like other states, New York sorts property into two categories: marital property and separate property.

Marital Property vs. Separate Property

Marital property is any property that you, your spouse or both of you have acquired during your marriage. This category often includes real estate you purchased after getting married, vehicles, home furnishings and other common marital items, as well as any appreciation on this property.

Any income you or your spouse earned while you were married is also categorized as marital property. Retirement benefits earned during the marriage are also marital property, while any retirement benefits from before you and your spouse were married are not.  

If you and/or your spouse have started operating a business together since getting married, the business is also viewed as marital property. This type of marital property can be very difficult to divide equitably in divorce.

Separate property is property you or your spouse acquired before getting married. This category also includes property you or your spouse receive as a gift or inheritance (with the exception of gifts from your spouse) and compensation for personal injuries.

Any appreciation in value of separate property that occurs while you’re married (for example, an increase in the value of a house you inherited from a deceased parent) will typically fall into the separate property category, provided your spouse is not responsible for the appreciation.

Finally, if you have a prenuptial agreement, any property that’s specifically defined as separate property in the agreement will be characterized as separate property while working out property division.

Dividing Property in Divorce

New York uses an equitable distribution system to divide property in a divorce, meaning that the marital property is divided in a way that’s fair based on each spouse’s needs and contribution to the marriage.

Below, we’ve explained how equitable distribution works in more detail, as well as how it could affect property division in the event you get a divorce.

What is Equitable Distribution?

In New York, any marital property is divided using an equitable approach if you and your spouse get divorced.

Equitable distribution means that assets are divided in a fair way, considering the needs of each spouse and each spouse’s contribution to the marriage. Contrary to popular belief, an equitable distribution of property doesn’t always mean that your marital property is divided equally.

Judges use a variety of factors to reach an outcome regarding property division. These factors include:

• The amount of time you and your spouse were married
  
  
• Your property and income at the time you married and at the time you filed for divorce, as well as the property and income of your spouse
  
  
• You and your spouse’s age, health and general wellbeing
  
  
• You and your spouse’s needs to use specific property, such as a shared family house or apartment
  
  
• You and your spouse’s rights to a pension, inheritance and health insurance, including the rights you and/or your spouse could potentially lose due to the divorce
  
  
• You and your spouse’s projected future financial circumstances
  
  
• Any spousal maintenance (alimony) awarded by the court to one spouse
  
  
• Any factors that could affect the ability to convert marital property into cash, such as the non-liquid nature of some forms of property
  
  
• Any difficulty in accurately valuing and dividing specific marital property, such as shares in a business
  
  
• Any tax consequence that could apply to you or your spouse in the event that specific assets are sold or divided
  
• Any wasteful dissipation of marital property (wasteful use of marital assets), transfer of marital property or concealment of marital property
  
  
• Any other factors that could be relevant in determining an equitable distribution of marital property

No two divorces are the same, meaning that the experiences of friends or family members who have divorced in New York might not be relevant when it comes to dividing and distributing any marital property between you and your spouse.

401(k) Plans and IRAs in Divorce

Like in other states, any 401(k) retirement savings vehicles, IRAs and other retirement accounts you and your spouse have are viewed as community property during the divorce process.

However, only contributions you or your spouse made to your retirement accounts during your marriage are considered community property. Any funds you contributed to your 401(k) or IRA before you got married are your separate property and aren’t subject to property division.

Spousal Maintenance (Alimony) in New York

In New York, alimony is referred to as spousal maintenance. There are two main ways to reach an agreement regarding spousal maintenance:

• You and your spouse reach a mutual agreement regarding spousal maintenance without the involvement of the court.
  
  
• You and your spouse cannot reach a mutual agreement regarding spousal maintenance and spousal maintenance is awarded by the Family Court of the State of New York.

In New York, the family court will look at a variety of factors to determine the size and length of any spousal maintenance payments you or your spouse are required to pay to each other.

Most of the time, spousal maintenance is durational, meaning you or your spouse will only need to pay it for a specific amount of time. However, in some cases, a court might require that you or your spouse pay permanent, or “non-durational” spousal maintenance to the other person.

Courts look at a variety of factors when determining how much, if any, spousal maintenance is needed. The main factors that courts look at include the income and property of each spouse, as well as the average standard of living during your marriage.

Since October 2015, most of the spousal maintenance and support (a form of maintenance that occurs while you’re still married) process is calculated by a mathematical formula.

You can calculate the approximate amount of spousal maintenance you or your spouse will pay as part of your divorce using the New York court system’s online calculator, which provides an estimate based on you and your spouse’s income up to $184,000 per year.

There are also a range of other factors that can affect how much, if any, spousal maintenance needs to be paid from one spouse to the other. These include the length of your marriage, you and your spouse’s age and health, and the future earning capacity of you and/or your spouse.

The court might also look at factors like one or both spouses’ need to finance their training or education, the effects of child custody and child care on either spouse’s earning capacity and the way other marital assets are distributed during the divorce.

In short, working out spousal maintenance is often a difficult process with no one-size-fits-all answer. Depending on your financial circumstances, the length of your marriage and a large range of other factors, you or your spouse might be required to pay spousal maintenance.

Can Spousal Maintenance be Changed in the Future?

In some cases, you or your spouse might be able to request a change in spousal maintenance in response to a change in circumstances. In New York, spousal maintenance payments can be changed when:

• There has been a significant change in circumstances
  
  
• There has been at least a three year period since the spousal maintenance order was last modified or entered into
  
  
• You and/or your former spouse have had a change in income of 15 percent or more

Spousal maintenance payments are also often modified or terminated if the spouse receiving support remarries, or, in some cases, cohabitates with their new partner without marrying.

Child Custody and Support in New York

Child custody can be both legal and physical. A parent with physical custody of a child is the parent they live with. A parent with legal custody of a child has the authority to make certain legal decisions on the child’s behalf until they reach the age of majority.

If you and your spouse have children and can reach a mutual agreement regarding custody, joint custody might be an appropriate solution.

In New York, joint custody means that both of a child’s parents will have equal power when it comes to making legal decisions for the child. You and your spouse will be able to make joint decisions for your child (or children), with both spouses having a veto power over the other.

If you and your spouse can’t reach a mutual agreement regarding custody, the court will use a range of factors to determine an optimal custody arrangement. Some of the factors considered by the court include you and your spouse’s:

• Availability to care for your child
  
  
• Willingness to care for your child
  
  
• Physical health, if it materially affects childcare ability
  
  
• Mental and emotional stability
  
  
• Typical behavior during the court process
  
  
• Primary caretaker status, with the parent who was or is the child’s primary caretaker often receiving custody by the court

In more extreme cases, the court might also look at one parent’s use of alcohol of drugs, age, history of neglect and/or child abuse and living environment. Courts will also often consider the preferences of the child when determining which parent is best suited for physical custody.

How New York Child Support Works

Depending on your child custody agreement or the findings of the court, you might be required to pay child support to your child’s other parent or, if you have custody of your child or children, eligible to receive child support from the other parent.

In New York, child support is typically awarded to the parent who lives with the child or children more than half of the time. This means that even if you and your spouse share custody of your children, one of you might be legally required to pay child support to the other.

Child support in New York is intended to provide children with the same standard of living they would have received if their parents did not divorce.

Like spousal support, child support can be worked out through a child support agreement or by the court at a trial. The amount of child support you or your spouse might be required to pay is  typically calculated as a fixed percentage of parental income.

Depending on the number of children you and your spouse have together, you or your spouse might be required to pay between 17 and 35% or more of your income, before deductions, for child support.

The State of New York Government provides guidelines for calculating child support payments online in PDF format. You can also use the New York State Child Support Calculator to estimate the amount that you or your spouse might be required to pay in child support.

How to Get Divorced in New York

New York is both a fault and no-fault divorce state. This means that you or your spouse do not need to allege fault in order to get divorced. Like other states, New York has specific residency and eligibility criteria for married couples interested in divorcing in the state.

Eligibility for Divorce in New York

In order to get divorced in New York, either you or your spouse must have resided in New York State for at least two continuous years before initiating the divorce process.

Alternatively, you can also divorce if either you or your spouse have been living in New York for at least one continuous year before initiating the divorce case, and the two of you got married in New York State.

You can also divorce if both you and your spouse are residents of New York State on the day you or your spouse started the process of getting divorced, and the grounds for your divorce occurred in New York.

The New York State Unified Court System has more information on the residency requirements for filing for divorce in New York, as well as the seven valid grounds for initiating a divorce case in the state.

Unlike in many other states, there is no waiting period required for you and your spouse to get a divorce in New York.

The Divorce Process in New York

Because New York does not have a legal waiting period for divorce, you and your spouse can start the divorce process at any time in your marriage.

Getting divorced in New York can take as little as six weeks to one year or longer. If you and your spouse can reach an agreement, filing for an uncontested divorce in New York can be a relatively straightforward, inexpensive process.

However, if your divorce is contested, the process will take significantly more time and cost a greater amount.

To start the divorce process, you or your spouse will need to file a divorce petition. New York allows you to file a petition for a fault or no-fault divorce. Filing for a no-fault divorce does not require you to prove wrongdoing by yourself or your spouse.

You or your spouse can file the divorce petition with the court in your county. After filing, the other spouse will be served with a summons.

Uncontested Divorce

If you and your spouse can reach an agreement regarding terms such as property division, spousal maintenance, child custody and child support without a dispute, your divorce is an uncontested divorce.

This type of divorce is the least costly and time-consuming. Many divorcing couples opt to complete the uncontested divorce process on their own, without the assistance of a divorce lawyer.

Contested Divorce

If you and your spouse can’t agree to specific terms for property division, spousal support, child custody, child support and other factors, your divorce is a contested divorce. Any disagreements between you and your spouse can often be solved through mediation.

If mediation is successful and you and your spouse can reach an agreement, it’s possible to get divorced without going to trial. If mediation is not successful, you’ll head to court and a judge will determine the outcome of your divorce.

Going to trial is by far the most expensive, stressful and time-consuming way to get divorced in New York. Instead of the six to 10 weeks that are usually required for an uncontested divorce, a contested divorce can take several months or years to complete.

Because of this, most couples aim to resolve their disputes through mediation to avoid the costs and stress of going to trial.

New York Income Taxes and Divorce

Getting divorced in New York can affect your income taxes, resulting in a different filing status and potential implications for the amount of taxes you might be required to pay.

If you’re currently going through the divorce process, you have a range of options for filing your tax return:

• Married Filing Jointly. If you and your spouse are still legally married, you can file a joint tax return. This can often lower your tax burden, making it a preferable option for most people.
  
  
• Married Filing Separately. If you and your spouse are still legally married but do not want to file a tax return together, you can each file separately.
  
  
• Filing as Head of Household. If you and your spouse are no longer legally married at the end of the tax year but you pay for more than 50% of household expenses and have a qualifying child or dependent, you can file your tax return as “head of household.”
  
  
• Filing as Single. If you and your spouse are no longer legally married by the last day of the tax year, you can file your tax return as a single, unmarried person.

Like with many other tax-related situations, there’s no one-size-fits-all “best” option for filing your tax return while you go through a divorce. If you’re unsure of how to file, talking to a tax advisor can help you learn more about your options and make the right filing decision.