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Frequently Asked Questions

How do you start an action for divorce or separation in New York?
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. Thereafter, the Summons must be served personally on your spouse and an affidavit of personal service must be filed in court within 120 days after the Summons is served.

What is a summons?
A Summons is a legal document which gives notice to your spouse (the Defendant) that an action was started.

What is a complaint?
The Complaint is a legal document in the action for divorce, separation, or annulment. It contains the specific details and reasons for the relief requested in the Summons, including your grounds for divorce, separation or annulment; it also contains other requests such as child custody, visitation, child support and maintenance, equitable distribution of marital property, health insurance, life insurance, payment of legal fees and experts' fees, exclusive possession of the marital residence, orders of protection, etc.

What happens after my spouse is served with the summons?
If you start the divorce action by filing and then serving a summons without a complaint, your spouse has twenty days to serve a "notice of appearance" upon you (or your divorce attorney, if represented by an attorney). This means that your spouse appears in the divorce action and you have twenty days to serve your verified complaint upon your spouse.

If you start the divorce action by serving a summons and a verified complaint, 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.

Do I have a right to see my spouse's financial records?
In New York, both spouses have the right to complete Financial Disclosure as to the other spouse's income, assets and expenses before the case can proceed to trial or amicable settlement negotiations.

How do I prove my divorce case?
Whatever ground, or reasons you rely on to file for divorce, it will have to be proved. The evidence necessary to prove a certain ground is established by prior cases. If your spouse contests the action for divorce, there must be a trial or hearing at which at least one witness (it may be you) will have to testify about your allegations. If the Supreme Court of the State of New York finds your testimony to be more believable than the testimony of your spouse, you will have succeeded in proving your case and the court will grant you a Judgment of Divorce.

What are the grounds for a divorce in New York?
New York has six grounds for divorce. Four 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 two other grounds enable you to obtain a "no-fault" divorce. The spouse seeking the divorce must substantially comply with the provisions of the separation judgment or separation agreement. These two other grounds are: one year of living apart under a separation judgment granted by a Court, or under a separation agreement signed by the parties.

Am I required to reside in New York before I can begin my divorce action?
An action for divorce may be maintained only when any of the following conditions of New York residency apply:

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

How long will it take to get divorced in New York?
A simple uncontested divorce can be processed by the Supreme Court of the State of New York within 60 days. A complex contested divorce action, involving contested custody, support. valuation and property issues can take from one to three years.

THE RIGHT TO SPOUSAL SUPPORT IN NEW YORK

What is Spousal Support?
Spousal support is also called "Maintenance" and was formerly called "Alimony".

What is durational maintenance?
It is maintenance for a fixed period of time.

What is "permanent", "lifetime" or "non-durational" maintenance?
It is maintenance for a period of time that is not fixed by the court.

How is Maintenance calculated?
The Court must consider 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 award lacks sufficient property and income to provide for his/her reasonable needs and whether the party paying the maintenance has sufficient property and income to provide for the other's reasonable needs.

Factors which must be considered in determining amount and duration are:

1. The income and property of each spouse including marital property distributed to each spouse.
2. The duration of the marriage and the age and health of each spouse.
3. The present and future earning capacity of each spouse.
4. The ability of the spouse seeking maintenance to become self supporting and, if applicable, the period of time and training necessary to do so.
5. 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.
6. The presence of children of the marriage in the respective homes of each spouse.
7. The tax consequences to each spouse.
8. 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.
9. The wasteful dissipation of marital property by either spouse.
10. Any transfer of property or encumbrance made in contemplation of a matrimonial action without fair consideration.
11. Any other factor which the Court shall expressly find to be just and proper.

Do I get more maintenance or equitable distribution if my spouse committed adultery or committed cruel and inhuman treatment?
It depends on what part of the state of New York the action is brought. The role of marital fault is largely irrelevant with regard to the distribution of marital property and with regard to maintenance. The statutory factors for the distribution of marital property and for setting the amount and duration of maintenance make no reference to marital fault. However, there is a catchall factor which permits the court to consider "any other factor which the court shall expressly find to be just and proper". Marital fault in general is irrelevant under the Equitable Distribution Law of New York and should be 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 ne factor among many which must be considered by the court. Examples of "egregious" misconduct are (1) the dissipation of marital assets by a gambler spouse, and (2) making a contract to have a spouse murdered. The courts in the Third Judicial Department [which includes the Albany area upstate New York] have rejected this rule when it comes to the role of marital fault with regard to maintenance and consider egregious marital fault in fixing maintenance awards.

Can a man be awarded maintenance?
Yes. Support laws are "gender-neutral".

Will Maintenance end if I remarry?
Yes.

What factors do the courts consider in determining whether to award durational or permanent maintenance?
Durational maintenance is more commonly awarded where the spouse seeking support is relatively young and healthy and is not required to care for young children. The function of durational maintenance is to allow the recipient spouse an opportunity to achieve financial independence. Where a marriage is of short duration and especially if the parties have no children, New York courts are reluctant to grant permanent maintenance. Unless the applicant establishes dependency, the prevailing policy is to award rehabilitative (durational) maintenance, if any, is awarded at all. Where permanent maintenance has been awarded, the recipient spouse has almost invariably been older and often in impaired health while the supporting spouse was in a far better financial condition. New York courts in awarding maintenance are concerned about 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 where it is a long marriage, and durational where it is a short marriage. The the pre-divorce standard of living is a mandatory factor for the court's consideration in determining the amount and duration of the maintenance award.

EQUITABLE DISTRIBUTION OF MARITAL PROPERTY IN NEW YORK DIVORCE

What is Equitable Distribution of marital property?
It is a method for distributing property acquired by either spouse upon the divorce. The Supreme Court must distribute "equitably" all "marital property" regardless of the manner in which title is held, considering the following factors:

1. Income of each party at time of marriage.
2. Income of each party at time of commencement of the divorce action.
3. Property of each party at the time of marriage.
4. Property of each party at the time of the commencement of action for divorce.
5. Duration of marriage.
6. Age of both spouses.
7. Health of both spouses.
8. Need of custodial parent to occupy or own marital residence.
9. Need of custodial parent to use or own household effects.
10. Loss of inheritance rights after the divorce.
11. Loss of pension rights upon after the divorce.
12. 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 all 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; and any other factor which the Court shall expressly find to be just and proper.

What property is subject to equitable distribution in New York?
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 title is held.

It does not include property provided for in a written agreement. It does not include "separate property", which is defined as property acquired before marriage; property acquired 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 (or property acquired in exchange for 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 the other spouse.

Is my business or professional practice subject to Equitable Distribution in New York?
Yes, as long as it is acquired 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 equitable distribution upon a divorce in New York..

Does equitable distribution mean that all marital assets get evenly divided between the souses?
No, equitable does not mean equal. Marital property must be distributed equitably between the spouses, considering the circumstances of the case and of each spouse.

NEW YORK MATRIMONIAL AGREEMENTS

What constitutes a Matrimonial (or Marital) Agreement?
Matrimonial Agreements include Pre-Nuptial and Post-Nuptial Agreements, Separation Agreements and Settlement Agreements made by the two spouses

When can Matrimonial Agreements be made?
Before or during the marriage.

What formality is required in order to make such Agreements valid and Enforceable?
Agreements must be in writing; signed by both parties and notarized.

What may be included in such agreements?
The following may be included in a Matrimonial Agreement:

1. A contract to make a testamentary provision or.
2. A waiver of any right to elect against a will.
3. 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; these provisions must be fair and reasonable at the time of making the agreement and must not be unconscionable at the time of entry of final judgment.
4. Other terms and conditions of the marriage relationship; these provisions must be fair and reasonable at the time of making the agreement and must not be unconscionable at the time of entry of final judgment.
5. Provisions for custody, care, education and support of any child of the parties.

ENFORCEMENT OF SPOUSAL AND CHILD SUPPORT IN NEW YORK

What can I do if my spouse refuses to pay child support or maintenance?
You can bring a proceeding in the Supreme Court of the State of New York or the Family Court of the State of New York for a support order. If your separation/settlement agreement or divorce judgment contains a direction to your spouse to 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/her to put up security for future payments, appoint a receiver of his/her property or hold him/her in contempt of court.

You can also sue your spouse for breach of your separation/settlement 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 from 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 may also obtain an Income Deduction Order from the Supreme Court or the Family Court.

Can I obtain Child Support Enforcement services?
Anyone can request "child support enforcement services". 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 and signing a form prescribed by the New York Department of Social Services, or filing a petition with the Family Court or applying to the Family Court of the State of New York in a proceeding for the establishment of paternity and/or enforcement of a support obligation, including a signed application for child support services.

What happens when I request Child Support Enforcement services?
When an order of support is being enforced by child support enforcement services, the New York Family Court must direct that the child support payments be made to the New York Child Support Enforcement Unit, which must immediately 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. There is an exception for a child who is not in receipt of public assistance if the parents have signed a written agreement providing for alternative support arrangements.

MODIFICATION OF SPOUSAL AND CHILD SUPPORT OBLIGATIONS IN NEW YORK

Can I unilaterally terminate my child support payments if my spouse refuses to allow visitation with my children?
No. Although an application may be made to the court to suspend or terminate future child support, the right of the child to receive adequate support is superior to the parents' right to visitation. When it appears that a custodial parent receiving alimony or maintenance has wrongfully interfered with or withheld visitation rights the court may suspend the maintenance payments or cancel any arrears that have accrued during the time that visitation rights are withheld.

I was ordered to pay maintenance that I can no longer afford. What can I do?
The Supreme Court of the State of New York and the New York Family Court may modify downward the maintenance provisions of a divorce judgment. A court order requiring a spouse to pay maintenance in a divorce judgment made after July 19, 1980, may be modified downwards (or upwards) upon a showing of the recipient's inability to be self-supporting or a substantial change of circumstances, including financial hardship. This modification power also exists where an agreement has been incorporated into an order or judgment and merges into it and ceases to exist as a separate agreement.

Can the court eliminate the arrears of maintenance in New York?
Any arrears which have accrued under a judgment or order prior to the making of an application for modification cannot be modified unless the defaulting spouse shows good cause for failure to apply for relief from the order directing payment prior to the accrual of the arrears.

I signed an agreement which requires me to pay maintenance and it was incorporated in my judgment of divorce. What can I do if I can no longer afford to pay?
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 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 supercedes 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".

In my New York divorce judgment I was ordered to pay child support that I can no longer afford to pay. What can I do?
A court ordered provision for child support in a divorce judgment made on or after July 19, 1980, may be modified by the Supreme Court of the State of New York and by the New York Family Court, (except for arrears and sums reduced to judgment,) upon showing a substantial change in circumstances, including financial hardship. The New York court may also modify a judgment as to child support upon a showing of the recipient's inability to be self supporting. This modification power also exists where an agreement is incorporated into an order or divorce judgment and merges into it and ceases to exist as a separate agreement.

I signed a settlement agreement which requires me to pay child support and it was incorporated in and survived my judgment of divorce. What can I do if I can no longer afford to pay?
Where a settlement agreement is incorporated in a judgment of divorce and continues to exist as a separate agreement after the divorce judgment is made, the Court cannot reallocate the child support obligations between the parents if the agreement is fair, unless there is an unanticipated and unreasonable change in circumstances resulting in a showing of financial need. If the child is not receiving adequate support, the Court may increase the amount of child support.

Can the Court reduce or eliminate my arrears of child support?
Any arrears which have accrued under a judgment or order prior to the making of an application for modification are not subject to modification or annulment.

SPECIAL RELIEF IN NEW YORK DIVORCE ACTIONS

What is Special Relief?
It is relief that the New York court may grant a party directing his/her spouse to provide insurance for the benefit of his/her spouse or his/her children.

What can the New York Court order a spouse to do?
The Court can order a spouse to:

1. Purchase, maintain or assign a policy of insurance for health and hospital care and related services for either spouse or children.
2. 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.

Are there any restrictions on the court's ability to order Special Relief in New York?
The policy of health insurance and related services for either spouse or children cannot be for longer than a party is obligated to pay maintenance, child support or a distributive award.

The life insurance may be during a period of time fixed by the Court but the beneficiary's interest must terminate upon the termination of the spouse's obligation to pay maintenance, child support, a distributive award, or when the beneficiary remarries or predeceases the insured.

COMMON-LAW MARRIAGES

Are Common-Law Mairriages Valid in New York?
Common-law marriages are not valid marriages in New York State. Such marriages were abolished in New York since 1933. However, New York will recognize a common-law marriage that is valid in the state were it was contracted.

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

According to the New York family law, the 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. Precedent New York decisions have liberally interpreted the requisites for a valid common-law marriage in another state. These New York cases found that a common-law marriage was created by the couple during a brief visit to a common-law marriage state.

The law to be 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.