DIVORCE BASICS
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WHAT ARE THE GROUNDS FOR DIVORCE IN NEW YORK?
New York is the last remaining state to require grounds for divorce. There are only a limited number of grounds. They are found in Section 170 of the Domestic Relations Law.
1) The cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant.
(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 of plaintiff and defendant.
(4) The commission of an act of adultery, provided that adultery for the purposes of articles ten, eleven, and eleven-A of this chapter, is hereby defined as the commission of an act of sexual or deviate sexual intercourse, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of plaintiff and defendant. Deviate sexual intercourse includes, but not limited to, sexual conduct as defined in subdivision two of Section 130.00 and subdivision three of Section 130.20 of the penal law.
(5) The husband and wife have lived 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, and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree or judgment.
(6) The husband and wife have lived separate and apart pursuant to a written agreement of separation, subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded, for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such agreement. Such agreement shall be filed in the office of the clerk of the county wherein either party resides. In lieu of filing such agreement, either party to such agreement may file a memorandum of such agreement, which memorandum shall be similarly subscribed and acknowledged or proved as was the agreement of separation and shall
contain the following information: (a) the names and addresses of each of the parties, (b) the date of marriage of the parties, (c) the date of the agreement of separation and (d) the date of this subscription and acknowledgment or proof of such agreement of separation.
WHAT ARE THE CHILD SUPPORT PERCENTAGES IN NEW YORK?
Section 240 of the Domestic Relations Law provides:
(3) "Child support percentage" shall mean:
(i) seventeen percent of the combined parental income for one child;
(ii) twenty-five percent of the combined parental income for two children;
(iii) twenty-nine percent of the combined parental income for three children;
(iv) thirty-one percent of the combined parental income for four children; and
(v) no less than thirty-five percent of the combined parental income for five or more children.
(4) "Combined parental income" shall mean the sum of the income of both parents.
Be aware that "income" as defined by this section is not your net income. It is basically your gross income minus FICA and unreimbursed employee expenses. The above formula applies to the first $130,000.00 of combined parental income. Above that, the court may either use the percentages, or make a determination based upon lifestyle.
WHAT FACTORS ARE USED TO DETERMINE MAINTENANCE FOR A SPOUSE?
We find the answer in Section 236B of the Domestic Relations Law.
In determining the amount and duration of maintenance the court shall consider:
(1) the income and property of the respective parties including
marital property distributed pursuant to subdivision five of this part;
(2) the duration of the marriage and the age and health of both
parties;
(3) the present and future earning capacity of both parties;
(4) the ability of the party seeking maintenance to become
self-supporting and, if applicable, the period of time and training
necessary therefor;
(5) reduced or lost lifetime earning capacity of the party 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 the parties;
(7) the tax consequences to each party;
(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) the wasteful dissipation of marital property by either spouse;
(10) any transfer or encumbrance made in contemplation of a
matrimonial action without fair consideration;
(11) the loss of health insurance benefits upon dissolution of the
marriage; and
(12) any other factor which the court shall expressly find to be just
and proper.
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WHAT ARE THE FACTORS USED TO DETERMINE EQUITABLE DISTRIBUTION OF PROPERTY?
(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. ______________________________________________________________
The bottom line is there are many factors to consider in a divorce, and representing yourself is a very dangerous idea. You need experienced matrimonial counsel to protect your rights in property, in income, and in supporting and visitation with your children. If you are contemplating divorce, or have been served with papers, call my office and schedule an appointment as soon as possible. 516 624-0240