New York Divorce

There are multiple grounds that can be alleged in New York in a divorce action. However, in October of 2010 New York State became the last state to finally enact a No-Fault divorce ground. Therefore, it is likely that most, if not all, future divorce actions will be brought under this ground, although all of the other remaining grounds are still available. The grounds for divorce in New York are:

1. Cruel & inhuman treatment;
2. the abandonment of the Plaintiff by the Defendant for a period of one or more years;
3. the confinement of the Defendant in prison for a period of three or more consecutive years after the marriage;
4. the commission of adultery voluntarily performed by the Defendant with a person other than the Plaintiff after the marriage;
5. living apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment;
6. living separate and apart pursuant to a written agreement of separation signed by the parties for a period of one or more years after the signing of the agreement;
7. the relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath.

Paragraph 7 above is the No-Fault ground for divorce in New York and what this essentially means is a divorce will be granted on that ground only after the parties or the court has resolved ALL issues in the marriage. This is different from all of the other grounds for divorce in New York which requires that the party prove the ground for divorce before a final determination will be made on all of the other economic and custody issues of the marriage.

New York does what is known as an equitable distribution of the marital property of the parties in a divorce action. Marital property is property acquired during the course of the marriage (date you were married through the date the action was commenced). All other property acquired prior to the marriage or after the marriage is generally going to be considered separate property, unless it can be shown that the property has been what is referred to as "transmuted" from separate property to marital property. This can happen when the party who owns the separate property commingles it so much with marital property that it essentially becomes marital property, i.e. the other spouse having responsibility to manage the property. This is a complex area and there are many ways in which separate property can become marital property.

With respect to the distribution of marital property, New York court's generally try to divide the marital property almost evenly between the parties, although it does not have to be exactly equal. The court has discretion to award one party a higher share of the marital property than the other party receives. When making an equitable distribution determination of the marital property, the court will consider the following factors:

1. the income and property of each party at the time of marriage, and at the time of the commencement of the action;
2. the duration of the marriage and the age and health of both parties;
3. the need of a custodial parent to occupy or own the marital residence and to use or own its household effects;
4. the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution;
5. the loss of health insurance benefits upon dissolution of the marriage;
6. any award of maintenance under subdivision six of this part;
7. any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
8. the liquid or non-liquid character of all marital property;
9. the probable future financial circumstances of each party;
10. the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party;
11. the tax consequences to each party;
12. the wasteful dissipation of assets by either spouse;
13. any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
14. any other factor which the court shall expressly find to be just and proper.

Spousal support (also referred to as alimony and maintenance) is determined based upon the needs of the party seeking such support from the other party. The factors that the court is to consider when making a determination for spousal support are:

1. any income or assets of the parties including the property award;
2. the length of the marriage and the age and health of the parties;
3. the earning potential of both parties;
4. If and how long it would take the party seeking support to become self-supporting;
5. reduced or lost lifetime earning capacity;
6. the presence of children of the marriage in the respective homes of the parties;
7. the tax ramifications;
8. contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
9. any dissipation of assets;
10. any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; and
11. any other factor which the court shall expressly find to be just and proper.

In October 2010, New York passed legislation that sets forth a framework for the court to use when determining the request by the lesser income earning spouse for temporary maintenance. Absent a written agreement by the parties that address the issue of spousal support, the court will make an award of temporary maintenance to the lower income earning spouse based upon application of the guideline calculation on the first $500,000.00 of income. This maintenance award is a presumptive award (meaning it will be granted) unless the court determines the award to be unjust or inappropriate, in which case the court can adjust the presumptive award accordingly based upon consideration of the following factors:

1. the standard of living of the parties established during the marriage;
2. the age and health of the parties;
3. the earning capacity of the parties;
4. the need of one party to incur education or training expenses;
5. the wasteful dissipation of marital property;
6. the transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
7. the existence and duration of a pre-marital joint household or a pre-divorce separate household;
8. acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law;
9. the availability and cost of medical insurance for the parties;
10. the care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party's earning capacity or ability to obtain meaningful employment;
11. the inability of one party to obtain meaningful employment due to age or absence from the workforce;
12. the need to pay for exceptional additional expenses for the child or children, including, but not limited to, schooling, day care and medical treatment;
13. the tax consequences to each party;
14. marital property subject to distribution pursuant to subdivision five of this part;
15. the reduced or lost earning capacity of the party seeking temporary maintenance as a result of having foregone or delayed education, training, employment or career opportunities during the marriage;
16. the contributions and services of the party seeking temporary maintenance as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party; and
17. any other factor which the court shall expressly find to be just and proper.

North Carolina law declares that all property, both real and personal, accumulated during the marriage by the parties' efforts (exclusive of gifts and inheritances) shall be divided equitably between the parties, regardless of which party holds title or ownership of that property. The division of the property will be equitable, which is usually 50/50 but not always the case.

The court uses a number of factors in deciding whether to give one party more than 50% of the marital estate. Parties may resolve property questions by entering into a written agreement at any time before or during separation. However, if property questions are not settled by written agreement, a claim for equitable distribution must be filed with the court prior to the granting of a divorce or rights to an equitable distribution of property will be forfeited. You should consult an attorney about these very important and complex property issues. If the parties cannot agree upon the division of property, the law provides the means of bringing the issue before the court, which will divide all of the property in such manner as it finds to be equitable.

Alimony is called spousal support. In North Carolina, alimony can be obtained only when the financially dependent spouse can demonstrate that the supporting spouse has the ability to pay. Because of the complexity of the grounds for alimony, an attorney should be consulted regarding any questions about this issue. Marital misconduct is relevant to an alimony claim, however, it only affects the amount and duration of alimony. A spouse seeking alimony can be held responsible for misconduct even after the parties have separated and until the final resolution of the alimony claim. A claim for alimony is forfeited if it is not put forward before the divorce is granted by the Court.

This is the most crucial issue in most domestic cases. In determining the custody of minor (under the age of eighteen) children, the court is guided by one standard—the best interest of the child. Factors that the Court take into consideration when determining what is in the child's best interest include: the age of the parent and the child, the physical and mental condition of the parent and child, the relationship existing between each parent and each child, the needs of the child, the role played by each parent in the upbringing and caring for the child, and the home where the child will live. The court will normally set visitation rights if the parents cannot voluntarily agree upon satisfactory arrangements.

An important factor to the court in most custody cases is which parent will be the most likely to see to it that the non-custodial parent remains a strong part of the child or children's lives. Once a determination of permanent child custody is made, it can only be changed by proving to the court that there is a substantial and material change of circumstances in relation to the child(ren). Therefore, child custody determinationsare never permanent and can be changed once the party has shown a substantial and material change of circumstance.

Normally, the party not having custody will be called upon to contribute to the support of the minor child (ren). This could be an obligation of the mother as well as the father, or both, if a third person has custody of the child. Child support begins once the child is born and normally continues until the child turns 18 or is emancipated. North Carolina is guided by the needs of the child(ren) and the ability of the supporting parent(s) to pay.

The use of North Carolina's Child Support Guidelines provides an amount of child support that is presumed to be correct, but the court may deviate from these guidelines in appropriate circumstances. The Guidelines takes the gross monthly income of the mother and the gross monthly income of the father, along with healthcare premiums and child care costs and comes up with the amount of support for each parent. These Guidelines and sample calculations can be found on the internet. The award is subject to change so long the obligation to support remains. It may be increased or decreased if a material change occurs in the circumstances of either or both of the parents of the child.