Residency and Filing Requirements
In order to file for a divorce in New York, residency requirements must be met for the Court to accept the case. If the Court discovers it does not have jurisdictional rights to hear the case it will not be accepted or it will eventually be dismissed. The requirements are as follows:
Required residence of parties. An action to annul a marriage, or to declare the nullity of a void marriage, or for divorce or separation may be maintained only when:
1. The parties were married in the state and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one (1) year immediately preceding, or
2. The parties have resided in this state as husband and wife and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one (1) year immediately preceding, or
3. The cause occurred in the state and either party has been a resident thereof for a continuous period of at least one (1) year immediately preceding the commencement of the action, or
4. The cause occurred in the state and both parties are residents thereof at the time of the commencement of the action, or
5. Either party has been a resident of the state for a continuous period of at least two (2) years immediately preceding the commencement of the action. (Consolidated Laws of New York – Domestic Relations Laws – Article 13 – Sections: 230 and 231)
What are the grounds for divorce?
Four (4) of the “grounds” in New York State are based on the fault of one of the parties:
- Cruel and inhuman treatment;
- Abandonment for one or more years;
- Imprisonment for three or more years; and
The other (“no fault”) grounds are:
- One (1) year of living apart under a separation agreement;
- One (1) year of living apart under a separation decree granted by a court; and
- An irretrievable breakdown of the marriage for a period of at least six (6) months, provided that one spouse has so stated under oath.
These “no fault” grounds afford New Yorkers a basis to obtain a divorce in which neither spouse is judged to be at fault.
In New York, marital property is divided between spouses under the law known as equitable distribution. The term “equitable” means “fair” and an equitable distribution of marital property does not always mean an equal one.
Equitable distribution of marital property is implemented by identifying what the assets and liabilities are as of the date the divorce action starts; classifying those assets and liabilities as marital or separate property; determining the value(s) of the marital property; and then ultimately distributing those assets and liabilities, or their value, as between the spouses.
Marital property comprises all property acquired during the marriage regardless of who holds title. However, not all property is marital property. Rather, some property is known as a party’s “separate property.” Separate property is defined as:
- Property acquired before marriage;
- Property acquired by bequest, devise, or descent (i.e., inheritances) or as a gift from a party other than the spouse, even if acquired during the marriage;
- Compensation for personal injuries, even if acquired during the marriage; and
- Property acquired in exchange for, or the increase in value of, separate property, except to the extent that such appreciation occurs during the marriage and is due in part to the contributions or efforts of the other spouse.
Experts may be retained to value certain assets. Typically, real estate, businesses, and pensions are valued by experts.
Courts have the power to equitably distribute marital property based upon the following factors:
- the income and property of each party at the time of marriage, and at the time of the commencement of the action;
- the duration of the marriage and the age and health of both parties;
- the need of a custodial parent to occupy or own the marital residence and to use or own the household effects;
- the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution;
- the loss of health insurance benefits upon dissolution of the marriage;
- any award of maintenance (post-divorce);
- 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. The court shall not consider as marital property subject to distribution the value of a spouse’s enhanced earning capacity arising from a license, degree, celebrity goodwill, or career enhancement. However, in arriving at an equitable division of marital property, the court shall consider the direct or indirect contributions to the development during the marriage of the enhanced earning capacity of the other spouse;
- the liquid or non-liquid character of all marital property;
- the probable future financial circumstances of each party;
- the impossibility or difficulty of evaluating any component asset or any interest in a business, corporate or profession, and the economic desirability of retaining such asset or interest intact and 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.