New York Divorce and Child Custody Law
To file a divorce action in New York, residency must be established. If your residency status is complicated, I help you sort out the confusing rules to see if you meet the standard.
Grounds for filing a divorce complaint
The parties must agree to the grounds for divorce, or the filing spouse must prove them to the court. Grounds for divorce in New York include:
- New York No Fault Divorce Law Irretrievable Breakdown for 6 months, no waiting period
- cruel and inhuman treatment
- abandonment, including constructive abandonment, for a year or more
- commission of adultery
- husband and wife have lived apart for a year or more under a separation agreement
- imprisonment for three or more consecutive years after the marriage
Property distribution during a divorce
New York is an equitable distribution state. The court encourages the parties to present a property distribution agreement. If there is no agreement, the court will decide what is equitable. The court considers factors including:
- income and property of each party
- age and health of both parties
- length of marriage
- need of a custodial parent to occupy the marital residence
- likely future financial circumstances
- tax consequences
- wasteful spending history
- unfair attempts to protect assets in advance
Spousal support after a divorce
Not all cases involve spousal support. The need for alimony is decided on a case-by-case basis. If the court must make a determination, it considers many of the same factors that were considered in the division of property, and other issues such as:
- age, length of marriage, work history
- loss of health insurance
- the present and future earning capacity of both parties
- contributions of one party to the career potential of the other
- the presence of children of the marriage in the homes of the parties
Settlement vs. trial
Although it is the policy of my office try to reach a fair settlement, I have extensive trial experience and can aggressively try your case if necessary.
If divorcing parents cannot come to an agreement about how to share the parenting of their minor children, the court will establish a custody order. New York courts have broad discretion in child custody cases. The best interests of the child are considered, and the law does not provide specific criteria. I make a case to the court that awarding you custody is in the best interests of the children.
The non-custodial parent is usually given frequent visitation, including overnight stays. Parental visitation rights are denied only if visitation would be contrary to the well-being of the child. Grandparents can apply for visitation rights, though the court is not required to grant them.
New York child support amounts are set by the court, using the Child Support Standards Act (CSSA). This usually means that the amount is a percentage of the non-custodial parent’s income. The court also considers other factors such as:
- Financial resources of the parents and children
- Standard of living prior to the divorce
- Physical and mental health of the children
- Educational needs of the parents and children
Unfortunately, even after the Judgment of Divorce is signed, certain problems may arise such as failure to pay financial obligations that are required by the Judgment of Divorce. Visitation and custody concerns may also arise as well as changing circumstances that require necessary modification to child support and spousal maintenance arrangements. I am able to effectively manage these post-divorce issues.
Get solid legal representation in your difficult time
I follow through with your family law case for as long as you need my services. Even if you move out of state after your divorce, I work to uphold your rights if there is a continuing conflict. Please contact me: family law attorney Eugene R. Dougherty.