During the New York divorce process, you and your spouse will resolve all marital issues, including those related to property division, child custody, and financial support matters. If you can't come to an agreement on your own, a judge will have to decide for you.
Does Divorce Require a Trial?
Contrary to popular belief, most divorce cases settle outside of court. If you’re interested in avoiding the drawn-out divorce trial, you can participate in mediation, which is where a neutral, specially trained mediator helps both spouses come to an agreement and resolve disputes about the divorce. Resolving your case in mediation could save you both time and money.
Proving to the Court That Divorce Is Necessary
Like every state, New York requires the filing spouse (plaintiff) to identify a specific reason, or ground, for the divorce request. You have the choice of filing for a no-fault divorce, meaning neither spouse is responsible for the breakdown of the marriage, or a fault divorce, which is where one spouse claims their spouse’s bad behavior caused the breakup.
To pursue a no-fault option, you must demonstrate that your marriage has suffered an irretrievable breakdown, which is a fancy way of telling the judge that you and your spouse don’t get along and there’s no chance you'll reconcile. Be prepared to show the court that you’ve had marital troubles for the past six months.
Another option that doesn't involve fault is to base your divorce on separation. With this option, you must show that you’ve lived separate and apart for at least one year before filing. You’ll need to provide a copy of your separation agreement to the court and demonstrate that both spouses have performed all the terms and conditions of the agreement.
New York has limited options for fault divorce, but it’s available if you can prove your spouse committed marital misconduct. The possible grounds include:
- adultery during the marriage
- cruel and inhuman treatment
- abandonment for at least one year, or
- imprisonment for three consecutive years.
It’s important to understand that if you allege marital misconduct, you’ll need to prove that your spouse committed the alleged behavior by submitting admissible evidence to the court, which may be quite difficult. If you intend to pursue a fault divorce, you should speak with a local family law attorney, who has plenty of experience handling these types of high-conflict divorce trials.
Other Requirements for Divorce
In addition to citing legal grounds for divorce, you must also meet New York’s residency requirements before you file. The court will accept your divorce case if you can prove any of the following:
- you or your spouse have lived in the state for at least two years
- both you and your spouse are residents of the state on the day your divorce begins, and the grounds for divorce occurred in New York, or
- either you or your spouse lived in New York for at least one year before the divorce case started, and
- you were married in the state
- you lived together as a married couple in New York, or
- the grounds for divorce happened in the state.
The Process for Divorce in New York
You start your case by filing a complaint for divorce with the court where you live. In your complaint, you'll identify yourself as the plaintiff and provide relevant information like your wedding and separation dates, tell the court if you have property, children, or support issues, and state your request for relief, or what you’d like to happen in the divorce.
After you submit your complaint and pay the filing fee, you’ll need to serve a copy to your spouse (defendant), and the defendant will respond to your allegations. Both parties will exchange financial information regarding debts, assets, expenses, and income by submitting financial affidavits.
The court can’t act on your case until 40 days after you serve the documents, unless the defendant waives the waiting period.
My Spouse Won’t Waive the Waiting Period, What Can I Do?
If your spouse chooses not to waive the waiting period, you have the option of requesting temporary orders from the court. It’s not unusual for couples to need assistance with financial, medical, or custody issues during the divorce process, and your attorney can make requests depending on your situation.
Common temporary orders include:
- financial restraining orders that prevent spouses from wasting marital assets during the divorce and require each spouse to continue paying expenses
- orders that require a spouse to keep covering health or other medical insurance, and
- child custody, visitation, and child support orders.
Equitable Division of Property
New York divides a couple’s property using a standard called equitable distribution, which means a fair division, which is not necessarily equal. If a couple can’t agree how to split their property and debts, a judge will decide using a variety of factors, including each spouses’ age and health, contributions to the marriage, and financial needs.
Custody and Visitation Can be Complicated
One of the most significant roadblocks for couples trying to settle a divorce is how to handle the minor children. Parents often can’t agree on who should make decisions for the child (legal custody), or where the child should reside (physical custody), which can stall couples with the best of intentions. If you can agree, you must present a parenting plan to the court before a judge finalizes your divorce.
A parenting plan spells out how physical custody will be shared between the parents, meaning where the child will reside and when the child will spend time with each parent. The time share schedule should be detailed and cover everything from transition time and locations, to holidays, vacations, and summer breaks. This plan should also spell out whether legal custody will be shared by both parents or awarded to only one parent to make sole decisions about the child's health, education, and religious upbringing.
The court will also determine a child support amount.
If you and your spouse can reach an agreement regarding the terms of your divorce, you can prepare a written divorce settlement document to present to the court. A judge will review and approve it if it meets the requirements for property division, custody, and support matters.
If your negotiations fail, you may want to seek the advice of an experienced family law attorney in your area.