Thinking About a Separation? Divorce? Prenuptial Agreement?

An action for divorce, separation or annulment is started by filing a Summons or Summons and Complaint in the Supreme Court of the State of New York. Then, the Summons must be served personally on your spouse and an affidavit of personal service must be filed in court.

An action for divorce may be started only when any of the following living conditions in New York apply:

• You and your spouse were married in New York, and either of you is a resident of New York when the divorce action is started and has been a resident of New York for a continuous period of one year immediately before the commencement of the divorce action
• You and your spouse have resided in New York as husband and wife, and either of you is a resident of New York when the divorce action is started and has been a resident of New York for a continuous period of one year immediately preceding the beginning of the divorce action
• The grounds for divorce occurred in New York, and either you or your spouse has been a resident of New York for a continuous period of at least one year immediately before the beginning of the divorce action
• The grounds for divorce occurred in New York, and both you and your spouse are residents of New York at the time of the commencement of the divorce action
• Either you or your spouse has been a resident of New York for a continuous period of at least two years immediately preceding the commencement of the divorce action

In New York, most of the “grounds” are based on the “fault” of one of the spouses. These are cruel and inhuman treatment, abandonment for one or more years, imprisonment for three or more years, and adultery. The other grounds enable you to obtain a “no-fault” divorce. These other grounds are: living apart for one year under a separation judgment granted by a Court, or under a separation agreement properly signed by the parties. The spouse seeking the divorce must substantially comply with the provisions of the separation judgment or separation agreement.

A simple uncontested divorce can be processed by the Supreme Court of the State of New York within two to three months depending on the county where you live. A complicated contested divorce, involving litigated custody, support, valuation and property issues can take from one to several years.

Common-law marriages are not valid marriages in New York State. However, New York will recognize a common-law marriage that is valid in the state where it was contracted.

Approximately a dozen states will permit common-law marriages to be entered into within their borders. Each state has different requirements for proving the validity of such marriages.

According to New York family law, the New York court will extend recognition to out-of-state common-law marriages of New Yorkers. For example, it is sufficient to show some minimum contacts with a common-law marriage state in order to activate the law of another state. New York legal decisions have liberally interpreted the requirements for a valid common-law marriage in another state. New York cases have found that a common-law marriage was created by the couple during a brief visit to a common-law marriage state.

The law applied by New York in determining the validity of an out-of-state alleged common-law marriage is the law of the State where the marriage occurred.

A Summons is a legal notice to your spouse that a lawsuit has been started. The Complaint is a legal document in a lawsuit for divorce, separation, or annulment. It details the grounds for divorce, separation or annulment. It also states other relief sought such as: maintenance, child support, child custody, visitation, equitable distribution, declaration of separate property, exclusive occupancy of the marital residence, health insurance, life insurance, legal fees and expert fees to evaluate assets.

Depending on whether or not a complaint is served with the summons, your spouse normally has twenty days to serve a “notice of appearance” on you or your divorce attorney.

Your spouse has 20 days to serve his or her answer to your complaint. The answer may also contain counterclaims against you. You have 20 days to reply to the counterclaims.

Spousal support is also called “Spousal Maintenance.” It was formerly called “Alimony.”

It is maintenance for a period of time that is not fixed.

The following criteria apply in New York State:

The standard of living of both spouses that was established during the marriage, the circumstances of the case and of the parties, whether the spouse who is getting the money lacks sufficient property and income to provide for his or her reasonable needs and whether the party paying the maintenance has sufficient property and income to provide for the other’s reasonable needs.

New York State requires consideration of the following:

• The income and property of each spouse including marital property distributed to each spouse
• The duration of the marriage and the age and health of each spouse
• The present and future earning capacity of each spouse
• The ability of the spouse seeking maintenance to become self supporting and, if applicable, the period of time and training necessary to do so
• Reduced or lost lifetime earning capacity of the spouse seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage
• The presence of children of the marriage
• The tax consequences to each spouse
• Contributions and services of the spouse seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other spouse
• The wasteful dissipation of marital property by either spouse
• Any transfer of property or encumbrance made in contemplation of a matrimonial action without fair consideration
• Any other factor which the Court shall expressly find to be just and proper

It is maintenance for a specific period of time.

In New York, both spouses have the right to complete Financial Disclosure as to each other’s income, assets and expenses before the case is negotiated or tried.

The role of marital fault is largely irrelevant with regard to the distribution of marital property. The statutory factors for the distribution of marital property and for setting the amount and duration of maintenance do not mention marital fault. Marital fault in general is irrelevant under the Equitable Distribution Law of New York and is considered only when it is so uncivilized or egregious that it shocks the conscience of the court. Even where the misconduct is egregious, it is just one factor among many which must be considered by the court. Examples of “egregious” misconduct are (1) the dissipation of marital assets by an addict, and (2) making a contract to have a spouse murdered.

Yes.

Ordinarily.

Short term maintenance is generally awarded where the spouse seeking support is able to be self-supporting, and it has been a relatively short marriage. The function of rehabilitative maintenance is to allow the recipient spouse an opportunity to achieve financial independence. Where permanent maintenance is awarded, the recipient spouse is older and often in impaired health. New York courts in awarding maintenance consider the length of the marriage, the ages, health and earning capacity of the respective parties. The duration of maintenance is most likely to be permanent in a long marriage, and rehabilitative in a short marriage. The marital standard of living is a factor for consideration in determining the amount and length of the maintenance award.

It is a method for evaluating and dividing property acquired by either spouse during the marriage. New York State law requires that The Supreme Court must distribute “equitably” all “marital property” regardless of the manner in which title is held, considering the following factors:

• Income of each party at time of marriage
• Income of each party at time of commencement of the divorce action
• Property of each party at the time of marriage
• Property of each party at the time of the commencement of action for divorce
• Duration of the marriage
• Age of both spouses
• Health of both spouses
• Need of custodial parent to occupy or own marital residence
• Need of custodial parent to use or own household effects
• Loss of inheritance rights upon divorce
• Loss of pension rights upon divorce
• Any award of maintenance
• Equitable claims to or interest in or direct or indirect contribution to the acquisition of the marital property by the spouse not having title, including:
• joint efforts
• expenditures
• contributions as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party
• liquid or non-liquid character of marital property
• probable future financial circumstances of each party impossibility or difficulty of evaluating any asset or interest in a business, corporation or profession
• the desirability of retaining the asset, or interest in the business, corporation or profession free from any claim or interference by the other party
• the tax consequences to each party
• the wasteful dissipation of assets by either spouse
• any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration
• any other factor which the court shall expressly find to be just and proper.

All property acquired by either or both spouses during the marriage, but before signing a separation agreement, and before commencement of a divorce or matrimonial action, regardless of the form in which title is held. It does not include “separate property.”

Separate Property is defined as property acquired before marriage; by bequest, devise, descent or gift from a party other than the spouse, compensation for personal injuries, property acquired in exchange for or the increase in value of separate property; property described as separate property pursuant to written agreement of the parties. However, the increase in value of separate property is marital property subject to equitable distribution to the extent that the appreciation is due in part to the direct or indirect contributions or efforts of either spouse.

Yes, as long as it is obtained during the marriage. Businesses, professional practices, and enhanced earning capacity attributable to the attainment of a career, or professional license, educational degree, profession or license is considered “property” subject to evaluation and equitable distribution upon a divorce in New York. Evaluations are usually performed by a forensic accountant or appraiser.

No, equitable does not mean equal. New York is not a 50/50 community property state. Marital property must be distributed equitably between the spouses, considering the circumstances of the case and of each spouse. These factors are enumerated in the statute.

Matrimonial Agreements include Prenuptial and Post-nuptial Agreements, Separation Agreements and Settlement Agreements made by the spouses. They are usually prepared by attorneys for the spouses.

Prenuptial agreements are made before a marriage, Post-Nuptial agreements are made during the marriage and prior to any divorce.

These agreements must be in writing signed by both parties and acknowledged in a very specific way in order to be valid.

The following may be included in a Matrimonial Agreement:

• Provisions for the ownership, division or distribution of separate property; provisions for the ownership, division or distribution of marital property; provisions for the amount and duration of maintenance.
• Other terms and conditions of the marriage relationship
• Provisions for custody, education and support of any child of the parties
• A contract to make a testamentary provision
• A waiver of the right to elect against a will

You can go to Supreme Court of the State of New York or the Family Court of the State of New York and ask a judge for enforcement. If your agreement or divorce judgment contains a requirement that your spouse pay maintenance or child support you can bring an enforcement proceeding in the Supreme Court of the State of New York or Family Court to enforce your legal rights. The Supreme Court of the State of New York or the Family Court of the State of New York can grant you a money judgment against your spouse, direct him or her to put up security for future payments, appoint a receiver of his or her property or hold him or her in contempt of court.

You can also sue your spouse for breach of your separation contract. If the amount involved is less than $3,000 you can sue for breach of contract in Small Claims Court. You may also obtain an Income Execution for Support Enforcement through your divorce attorney, the Clerk of the Family Court or the child support collection unit of the Family Court of the State of New York. You can also obtain an Income Deduction Order from the Supreme Court or the Family Court.

You can request “child support enforcement services” through the court. The New York Social Services Law provides that these services be made available, upon application, to persons not receiving aid to dependent children. The application is made by either completing a form provided by the New York Department of Social Services, or by filing a petition in Family Court or applying to Supreme Court or the Family Court of the State of New York in a proceeding for enforcement of a support obligation and /or the establishment of paternity.

When an order of support is being enforced by child support enforcement services, the New York Family Court directs that child support payments be made to the New York Child Support Enforcement Unit, which must issue an income execution for child support or combined maintenance and child support, and may issue an execution for medical support enforcement in accordance with the provisions of the support order.

No. Although an application may be made to the court to suspend or terminate future child support, you cannot just stop paying child support. When it appears that a custodial parent receiving alimony or maintenance has wrongfully interfered with or withheld visitation rights you can apply to the court to suspend the maintenance payments or cancel any arrears that have accrued during the time that visitation rights are withheld.

The Supreme Court of the State of New York and the New York Family Court may modify the maintenance provisions of a divorce judgment made on or after July 19, 1980 even where there is an agreement which continues to exist as a separate agreement after the divorce judgment is granted by the court. The modified judgment supersedes the terms of the prior agreement and judgment for such period of time and under such circumstances as the Court determines. The criteria upon which such modification may be ordered is “Extreme Hardship.”

Any arrears of back due support which have accrued under a judgment or order prior to the making of an application for modification are not subject to modification or annulment.

The Court can order a spouse to:

• Purchase, maintain or assign a policy of insurance for health and hospital care and related services for either spouse or children
• Purchase, maintain or assign a policy of insurance on the life of either spouse and designate either spouse or children of the marriage as irrevocable beneficiary