Preparing for Divorce in New York? Know the Laws Before You File

April 26th, 2024

Knowing NY Divorce Laws Protects Your Rights

Going through a divorce is tough. It’s a time filled with strong emotions and big decisions. If you’re thinking about getting a divorce in New York, it’s really important to know the rules before you start. Understanding New York divorce laws can help you make better choices and handle the tough times ahead.

These laws cover where you can file for divorce, reasons you can give for wanting one, and how things like money and kids will be split up. Knowing these laws can make the process smoother and less stressful for you and your family.

Quick Summary:

This article will give you an overview of what you need to know before you file for divorce in New York.

  • To file for divorce in New York, you or your spouse must have lived in the state for at least one year, unless specific conditions apply. 
  • New York offers both no-fault and fault-based grounds for divorce. No-fault grounds focus on the marriage being “irretrievably broken,” while fault-based grounds include reasons like cruelty, abandonment, imprisonment, and adultery.
  • New York divides property into marital and separate categories. Marital property includes assets acquired during the marriage, while separate property remains with the individual. 
  • New York courts prioritize the child’s best interests when determining custody. Factors considered include the child’s wishes, parents’ ability to care for the child, work schedules, and any history of abuse.
  • Child support is calculated based on both parents’ incomes and the child’s needs. The non-custodial parent typically pays the custodial parent to ensure the child’s financial needs are met.
  • Spousal support, or alimony, may be awarded to help the lower-earning spouse maintain their lifestyle post-divorce. Factors considered include the length of the marriage, each spouse’s income, and the standard of living during the marriage.

Residency Requirements for Filing a Divorce in New York

If you’re thinking about getting a divorce in New York, one of the first things you need to know is the residency requirements. These are rules about how long you have to live in New York before you can file for divorce here. Meeting the residency requirement is important because it’s a rule set by New York’s laws. The court needs to make sure it has the authority to handle your divorce case.

To get a divorce in New York, one of the following scenarios must apply:

  • you lived in New York as a married couple and either spouse has lived in the state for at least one year
  • you were married in New York and one spouse has lived in the state for at least one year
  • the grounds for your divorce arose in New York and you or your spouse has lived in the state for at least one year at the time you file for divorce, or
  • you or your spouse has lived in the state for at least two years.

If you don’t meet the residency requirement, the court may not be able to approve your divorce. This could delay the process or even prevent you from getting divorced in New York. So, it’s really important to make sure you meet this requirement before you file your divorce papers.

Grounds for Divorce in New York

When you’re thinking about getting a divorce in New York, you might wonder what reasons, or “grounds,” you can use. In New York, there are different grounds for divorce, both fault-based and no-fault. Each option has its own implications for the divorce process, so it’s important to think carefully about which one is right for you. Let’s take a closer look at these grounds to help you understand your options.

No-Fault Grounds for Divorce

No-fault grounds mean you don’t have to blame your spouse for the divorce. You just need to say that the marriage has been “irretrievably broken” for at least six months. In simpler terms, you and your spouse haven’t been getting along, and you believe the marriage can’t be fixed.

Using a no-fault ground can make the divorce process smoother and less confrontational. You don’t have to prove that your spouse did something wrong, which can help reduce conflict and save time and money.

Fault-Based Grounds for Divorce

There are fault-based grounds for divorce, where you can blame your spouse for the marriage ending. Here are some of the fault-based grounds recognized in New York:

Cruel and Inhuman Treatment

This means your spouse has treated you in a way that makes it unsafe or harmful for you to live together. It could be physical or emotional abuse.


Abandonment in a marriage happens when one spouse leaves the other without a good reason and doesn’t come back. For example, if your spouse has left you for at least one year without a good reason, you can use abandonment as a ground for divorce.


If your spouse has been in prison for at least three years in a row after you got married, this can be grounds for divorce.  It’s a way to say that because your spouse has been in prison for a long time, the marriage isn’t working out.


Adultery happens when one spouse cheats on the other by having a romantic or sexual relationship with someone else outside of the marriage. If your spouse has cheated on you, you can use adultery as a ground for divorce. 

Property Division Laws in New York

When going through a divorce, one big concern for many couples is how their property will be divided. New York has specific rules about this, and understanding them can help you know what to expect. Here’s how New York handles property division during a divorce:

Marital vs. Separate Property

There are two main categories of property: marital property and separate property. In New York, marital property is generally divided during a divorce, while separate property stays with the person who owns it.

Marital Property

This is property and assets that you and your spouse acquired during your marriage. It can include things like houses, cars, furniture, money in bank accounts, and retirement accounts.

Separate Property

This is property and assets that you or your spouse owned before you got married or received as a gift or inheritance during your marriage. It can also include certain personal injury awards.

How Marital Property is Divided

In New York, the goal of property division is to be fair and equitable, not necessarily equal. The court will consider several factors when deciding how to divide marital property, including:

  • Income and property of each spouse: What each of you earns and owns.
  • Length of the marriage: How long you’ve been married.
  • Age and health of each spouse: Your ages and health conditions.
  • Needs of each spouse: What each of you needs in terms of money and property.
  • Contributions to the marriage: What each of you contributed to the marriage, both financially and in other ways.
  • Future financial prospects: Your future earning potential and financial needs.

Debts in Divorce

Along with assets, debts also need to be divided. Just like with property, debts incurred during the marriage are generally considered marital debts and are divided between the spouses. This could include things like credit card debt, mortgage loans, and car loans.

Child Custody in New York

Going through a divorce is never easy, especially when kids are involved. One of the big concerns many parents have is figuring out who will take care of the children and make decisions for them. In New York, the courts focus on what’s best for the child when deciding custody. Let’s take a look at how child custody works in New York.

Types of Child Custody

Child custody refers to the legal responsibility for making decisions about a child’s upbringing. In New York, there are two main types of custody:

  • Legal Custody: This is about making important decisions for the child, like where they go to school, what kind of medical care they get, and religious upbringing.
  • Physical Custody: This is about where the child lives and who takes care of them day-to-day.

Factors Considered by New York Courts for Custody Decisions

When deciding on child custody, New York courts consider several factors to determine the best arrangement for the child. Some of these factors include:

  • Child’s wishes: If the child is old enough and mature enough, their preferences may be considered.
  • Parent’s ability to care for the child: This includes things like providing a stable home, meeting the child’s needs, and being involved in the child’s life.
  • Parents’ work schedules: The court will look at how much time each parent can spend with the child.
  • Any history of domestic violence or abuse: The safety and well-being of the child are always top priorities.

Child Support in New York

While child custody determines who will care for the child, child support ensures that both parents contribute financially to the child’s upbringing. To calculate child support in New York, the court considers:

  • Each parent’s income: This includes wages, bonuses, and other sources of income.
  • Child’s needs: The court looks at things like childcare, health insurance, and education costs.
  • Number of children: More children generally mean higher child support payments.

Once the court calculates the child support amount, the non-custodial parent (the parent the child doesn’t live with) usually pays the custodial parent (the parent the child lives with).

Spousal Support in New York

Spousal support, also known as alimony, is money one spouse pays to the other after a divorce. The idea is to help the lower-earning spouse maintain a similar lifestyle to what they had during the marriage. It’s meant to be a financial safety net, especially for spouses who may have given up job opportunities to take care of the family.

How New York Courts Decide on Spousal Support

New York courts have guidelines to help decide if spousal support is needed and how much should be paid. Here are some factors they consider:

  • Length of the marriage: A longer marriage may mean a higher chance of receiving spousal support.
  • Each spouse’s income and assets: If one spouse earns significantly more than the other or has more assets, they might be asked to pay spousal support.
  • Standard of living during the marriage: The court looks at the lifestyle the couple had during their marriage. If one spouse can’t maintain that lifestyle on their own after the divorce, they might get spousal support.
  • Each spouse’s age and health: The court considers each spouse’s ability to earn a living. For example, if one spouse is nearing retirement age or has health issues that limit their ability to work, they might receive spousal support.

How an East Islip Family Law Attorney Can Help You Understand New York Divorce Laws

Deciding to get a divorce is a big decision, and it’s important to know New York divorce laws before you start. Understanding the laws helps you know what to expect and how to navigate the divorce process. It can also help you avoid common mistakes that could cost you time and money.

Our East Islip NY family law firm at Donato Law can guide you through the divorce process in New York, protecting your rights every step of the way. We provide personalized strategies tailored to your unique situation, covering child custody, child support, and spousal support. Don’t hesitate to reach out for a free consultation to prepare for your divorce confidently and ensure the best outcome for you and your family.

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