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Family Law

Adapted from www.womenslaw.org

If I want a divorce, what are the basic steps I need to take?
How do I become eligible to file for divorce in NY State?
What are the legally-acceptable grounds for divorce?
What are some of things one might get from a divorce?
Can I still get a divorce if I am living with my spouse?
Do I need an attorney for the divorce?
What if I cannot afford any attorney for divorce?

Family law is an area of the law that deals with various family-related issues. These include matters of domestic relations including (but not limited to), marriage, separation, divorce, spousal support/alimony, property, distribution of marital assets, child custody, child visitation and child support, adoption as well as spousal and child abuse issues.

If I want a divorce, what are the basic steps I need to take?

In order to legally dissolve a marriage, anyone must get a divorce. Here are some basic steps towards getting a divorce:

• Meeting the residency requirements of the state;
• Having a ‘legally-acceptable ground’ for divorce; and,
• Filing for divorce and having copies sent to the spouse.

If the spouse (who has been served) is in agreement with everything in the divorce papers and signs them and sends them back, then this is known as an uncontested divorce. On the other hand, if s/he disagrees with anything and decides to file papers telling their side of the story, then it is known as a contested divorce. Typically, contested divorces are longer and more difficult, involving a series of court appearances to address all the issues.

If there is any marital property that needs to be divided or if one needs financial support from the spouse, then it may be necessary to have an ‘out of court’ settlement with the spouse or appear in court until all the issues are resolved.

How do I become eligible to file for divorce in NY State?

To file for divorce in New York, it is necessary to meet one of the residency requirements below:

• Either one of the spouses has to have lived in New York for at least 2 years;
• Either one of the spouses has to have lived in New York for at least 1 year and one of the following conditions should apply:

The wedding/marriage took place in New York, or

One of the spouses lived in New York during the marriage, or

The cause of divorce took place in New York; or,

• Both spouses live in New York at the time you file for divorce and the cause of divorce took place in New York.

What are the legally-acceptable grounds for divorce?

In New York, there are two kinds of divorces: divorce after separation and fault-based divorce:

Divorce after separation – Divorce after separation is where it is not necessary to have a reason for the divorce. To file for such a divorce, the two spouses must enter into a separation agreement or a court-ordered judicial separation. Once they have lived separately for one year (after the separation agreement or judicial order went into effect), only then they can file for divorce.

Fault-based divorce – With a fault-based divorce, one does not have to be separated before filing for the divorce. In New York, one can file for a fault-based divorce based on any of the following reasons:

• Cruel and Inhuman Treatment – This includes physical, emotional and/or verbal abuse. The judge will be looking for specific incidents of cruelty that occurred in the last 5 years. These instances have to demonstrate more than just not getting along with one’s spouse;
• Abandonment – To file for divorce based on the ground of abandonment, one spouse must have abandoned the other for a period of one or more years. Specific examples of abandonment by a spouse include a physical move from the marital home, a withdrawal of sexual relations, or locking the other spouse out of the home;
• Three Consecutive Years of Imprisonment – A divorce may be granted divorce if one spouse has been in jail for 3 or more years in a row. Based on this ground, one can file for divorce:
  • While their spouse is still in jail, and,
  • Up to 5 years after s/he is released from jail; or,
• Adultery – One has to show that their spouse committed adultery during the marriage. This is very hard to prove in court because evidence is required from a third party (someone other than the married couple has to be presented as a witness).

What are some of things one might get from a divorce?

There are a few things that one may consider asking for when getting a divorce. Below are some general guidelines, though an attorney should always be consulted to further assess any individual situation.

Share of the marital property – Property includes money, a home, car(s), personal items, and anything else one owns. First, the judge has to decide what is ‘separate property’ and what is ‘marital property.' Only marital property will be divided between the two spouses.

Separate Property – This is also known as ‘non-marital property’ and usually includes anything that brought into the marriage and kept separate during the marriage. Also, gifts received during the marriage may be considered separate property, e.g. inheritance. An individual will be allowed to keep anything that is deemed to be separate property.

Marital Property – This is anything earned or acquired during the marriage. It included wages, home furniture, etc. Both spouses will each get some of the marital property, but not necessarily in equal proportions. In New York, a judge divides marital property is ways that s/he thinks fair. This is called ‘equitable distribution.’ Again, there are many factors that are taken into consideration when dividing marital property and an attorney should be consulted for further assessment.

Debts – In a marriage, one spouse may create a debt, for example, on a credit card that both spouses may have opened together. So, if one spouse runs up a credit card, then the credit card company can come after the other one to pay it off. Therefore, once the separation happens, it is best to close any joint credit card accounts, so that if one spouse doesn’t pay off his/her debt or creates more debt, the other one will not be responsible. When dividing property, a judge will also decide who is responsible to pay off debts.

Custody – In a divorce proceeding, both parents have the right to ask for custody or visitation of a child or children. Custody determinations are made by a judge based upon the best interest of the children. Custody is the legal responsibility for the care and control of a child under 18. When a custody order is issued, it will address two different parts: legal and physical.

• Legal Custody is the right to make major decisions about one’s child, such as where the child goes to school, whether the child gets surgery, what kind of religious training the child should receive, etc. One can have sole legal custody or joint legal custody of their child, depending on their specific circumstances; and,
• Physical Custody is the actual physical possession and control of a child under 18. Physical custody is to determine who the child will live with on a day-to-day basis. Again, one may have primary physical custody of the child which would make them the primary caretaker or custodial parent. On the other hand, both parents may have shared physical custody of the child, wherein the child will live with both parents for equal or unequal amounts of time.

Maintenace (financial support) – Maintenance is money that one spouse must pay the other spouse during and/or after a divorce. Maintenance is only awarded in certain cases, based on the specific circumstances of the case. Maintenance is less likely to be granted if the length of the marriage was short, if the spouse (asking for maintenance) is relatively young and healthy, or if one’s spouse just does not have enough money or property to provide maintenance. Maintenance is usually granted for a set period of time to help give the recipient some time to become self-sufficient.

Child Support – Child Support is the money that a parent must pay to the children after a divorce. The parent who lives with the children has the right to ask for child support for children under 18. The child’s need, together with the parent’s ability to pay, determine how much child support will be granted by the judge.

Removal of the abuser from the marital home – If the marriage was abusive, then one has the right to ask the court to remove the abuser-spouse from the marital home. The court will need to look for abuse that is more substantial than just arguing or disagreeing, but does not necessarily need a history or paper proofs of domestic violence.

Order of Protection – One may get an Order of Protection if their spouse has been abusive during the marriage. For more information, please click here to find out how to get an Order of Protection.

Other Relief – It is also possible to request other forms of relief from the court, such as the legal use of the maiden/pre-marriage name, health insurance coverage for one’s self and the children, and to have your children named as beneficiaries of the ex-spouse’s life insurance plan.

Can I still get a divorce if I am living with my spouse?

If it is a fault-based divorce, it is possible to get a divorce while still living together. However, one should keep in mind that it may be emotionally very difficult, especially if there are children involved, to go through a divorce action while living in the same space as the spouse. It is especially dangerous and not advisable if there has been domestic violence in the home.

Do I need an attorney for the divorce?

It is always advisable to have an attorney. If one feels that one’s spouse is not liable to disagree with anything on the Complaint for Divorce, then individuals can file for themselves by filing the appropriate forms. If there are issues of custody, child support, financial support, and/or marital property that need to be resolved, it is much better to do it with the help of an attorney.

If one cannot acquire an attorney, it is possible to address custody and child support in Family Court before filing for divorce. This may ensure an easier or uncontested divorce later on. It is also important to find out if your spouse has a pension, a retirement account, insurance, or other significant property and share these facts with your attorney before filing for divorce. If these things are not addressed during the divorce, then one loses rights on them forever.

What if I cannot afford any attorney for divorce?

The court does not appoint attorneys for divorce cases. One either has to hire one or qualify for help at a public interest organization such as Legal Services or Legal Aid.

To find contact information for legal services organizations in NYC, please click here.