FAQs

In New York, there are four different ways to get a divorce:  

1. 1. Uncontested divorce—when both parties agree to all the terms prior to filing for a divorce.
   2. Mediation—informal negotiations with a neutral, third party “mediator,” to try and reach a settlement. Once settled, one party commences an uncontested divorce.
   3. Collaborative Divorce or Negotiation with Attorneys out of Court—out of court negotiations involving lawyers and, in the event of a Collaborative Divorce, a team of experts to help on issues like custody, valuation, etc.
   4. Litigation—a court based process which can end in a formal trial.  

To secure a divorce in New York: 

1. 1. One spouse must have lived in NY for two continuous years.
   2. One spouse must have lived in NY for one year, and you either: 
   3. Got married in NY; 
   4. Lived in NY as a married couple; or, 
   5. The grounds for your divorce happened in NY. 
   6. Both spouses are residents of NY when the divorce commences, and the divorce grounds occurred in NY. 

Generally, residency is not something to worry about. However, if you have a specific question about residency you should touch base with an attorney in the state where you live. 

When filing for divorce, your original Complaint must include your “grounds,” or rather, the reason why you want to dissolve the marriage. New York used to be a “fault based” state – meaning, the statute required that you prove your spouse committed a specific offense in order to qualify for a divorce. 

Several years ago, New York added “no fault” grounds which means that, now, individuals can file under either fault, or no-fault divorce grounds. (Be aware, while “fault” grounds exist, no attorneys or judges use fault grounds – all divorces are sued under “no fault” grounds.

In a no-fault divorce, neither party is blamed for the breakup. In order to qualify for a “no fault” divorce, you simply have to sign an affidavit stating that your marriage has been irretrievably broken for 6 months or more. Once signed, you will need to prove that all issues of custody, support, property, alimony, and counsel fees are fully resolved. If those items are resolved by a signed agreement, you qualify for a signed Judgment of Divorce.

To register for a free, on-demand, webinar, where Lauren covers the “ins and outs” of Divorce in New York, head here.

Collaborative divorce is another type of out of court divorce settlement. This process offers couples more structure than mediation, without the demands of a full trial.

Here, both parties are required to retain an attorney. In addition, instead of a single mediator, a number of expert witnesses can be called on to help coach the parties through important issues. If a settlement cannot be reached, both spouses must hire new representation before heading to litigation.

To learn more about the different options for divorce in New York, including mediation and collaborative divorce, register for this free, on demand, webinar.

Mediation usually takes one to four ninety-minute sessions to resolve (depending on the complexity of the issues), and can cost between $4,000 and $15,000.

At anywhere from $7,500 to $40,000, lawyers and experts give collaborative divorce a much more expensive hourly rate. However, even these costs pale compared to litigation, which is important to recognize because collaborative divorce has a high rate of success.

In either scenario, the exact cost of time and money will depend largely on the parties’ preparation, attitude, and willingness to compromise.  

To learn more about the different options for divorce in New York, including mediation and collaborative divorce, register for this free, on demand, webinar.

In addition to saving time and money, mediation and collaborative divorce both offer couples a greater amount of flexibility, allowing them to dictate the terms of their divorce in ways that better meet their individual needs. 

These methods are also much less confrontational, and can make the transition to post-divorce life a lot easier, especially for children. 

Considering all its benefits, most lawyers will suggest at least trying mediation, before heading to trial. 

To learn more about the different options for divorce in New York, including mediation and collaborative divorce, register for this free, on demand, webinar.

Custody is divided into two main categories: legal and physical. 

Legal custody is the authority to make important decisions on behalf of a child, including medical procedures, type of education, and religious exposure. Physical custody refers to the physical care and supervision of a child’s day-to-day needs. 

After divorce, it’s common for parents to shared equally, or divided disproportionately between a residential and visitation parent.

To register for a free, on demand, webinar about Custody in New York, head here.

When determining a child’s primary residence parent, courts analyze a number of different factors, including:

• • Parental availability;
  • The age and health of both parents;
  • Current education and childcare arrangements; 
  • The child’s preference (including emotional ties to each parent); and,
  • Any allegations of domestic violence, drug use, or other fault.

After careful consideration, a physical custody arrangement is made according to what will best serve the child’s long-term welfare and happiness.

To register for a free, on demand, webinar about Custody in New York, head here.  

“Parenting Time” refers to the time when a parent has custody over their children. There are a variety of parenting time arrangements. There can be equally shared schedules (where the children are with both parents equally) and there can be schedules with one parent as primary custodian which means the child (or children) lives with them the majority of the time. 

To learn more about different parenting plan options, register for the free, on demand, webinar “Parenting Time Plans In NY” here.

In New York, the party responsible for child support will depend almost entirely on who is assigned to be the child’s primary residence.

Due to the day-to-day costs associated with raising a child, the law requires that child support be ordered in all matters. If there is a parent with primary physical custody, courts will almost always require the non-custodial parent to make payments to the custodial parent. If the parents have equal parenting time, the court could award a payment from the higher income parent to the lower income parent or there could be an “expense sharing arrangement” among other models. 

Register for a free, on-demand, webinar here to learn more about Child Support in New York.

In New York, child support amounts are determined by analyzing the non-custodial parent’s gross annual income. Once deductions are accounted for, this number is multiplied by a percentage, based on the number of children the couple shares: 

• One child: 17%
• Two children: 25%
• Three children: 29%
• Four children: 31%
• Five or more children: at least 35%

Judges are also permitted to adjust the final amount, if needed. This payment is the “basic support obligation.” In addition, the Court must state how the following costs will be shared: the children’s share of the health insurance premium, the children’s uncovered medical costs, and day care costs incurred for a parent to work. Other costs, like education or extraordinary expenses, may be shared in a judges’ discretion (or upon party agreement).

Register for a free, on-demand, webinar here to learn more about Child Support in New York:

In New York, child support payments are required until the child turns twenty-one, unless the child: 

1. Gets married;
2. Joins the military; 
3. Becomes self-supporting; or, 
4. Emancipates themselves (this is uncommon). 

Child support can extend to the age of 26 if a child is “developmentally disabled” based upon specific statutory criteria. 

If higher education is something both parents want for their child, then college can also be included in child support costs (though, it’s not required by law). 

Register for a free, on-demand, webinar here to learn more about Child Support in New York.

The first step of property division is to classify an asset’s ownership as either marital or separate. 

Generally, property accumulated after marriage by either spouse is called marital property and belongs to both spouses equally (regardless of whose name is on the paycheck, account, mortgage, or card). Therefore, a bank account opened during the marriage in just one spouse’s name is still – presumptively – marital property. 

Assets acquired prior to marriage, however, are considered separate property, and upon divorce, will leave with whichever party brought it into the union. Gifts, inheritance, and personal injury money are also considered separate when received. The key to keeping these as separate property is that the receiving spouse not “mix” the asset with anything marital or place it into joint names.

To learn more about equitable distribution, register for the free, on demand, webinar  “Divorce in New York: Property Division” here.

Once property has been classified, the court must assign a value to marital assets. Often, this can easily be accomplished through bank statements and account records. In some cases, it may also be necessary to hire an appraiser to get the approximate value of real property. 

In regards to retirement accounts, and other investments, courts will determine value based on what percentage of the account accumulated while the couple was married.

If there are any business interests in a marriage, that business interest will need to be valued or a value agreed upon between the spouses. This valuation process can take some time and it is good to start it quickly.

To learn more about equitable distribution and valuation of an asset, register for the free, on demand, webinar  “Divorce in New York: Property Division” here.

Finally, once classification and value are complete, the court will “equitably” divide marital property. 

Under these guidelines, marital property is not automatically divided 50/50, but rather, is distributed between partners according to what is “most fair.” In addition to physical property and money, this theory also considers the non-tangible aspects of financial success, ensuring that the division is equitable in value, if not in physical assets.

While the Court is required to divide assets “equitably” the overwhelming majority of divisions result in an equal division of the assets and debts. 

To learn more about equitable distribution, register for the free, on demand, webinar  “Divorce in New York: Property Division” here.

Couples who are already married can also enact contracts between themselves. These are called, “postnuptial agreements,” and can be used to accomplish many of the same ends as a prenuptial agreement. 

Postnuptial contracts must be made in good faith, disclose all assets and property prior to signing, and will not be enforceable unless notarized. To ensure the contract is drafted fairly, each spouse is required to retain independent representation for the entirety of the process.

For more on the topic of prenuptial agreements, listen to Lauren’s podcast with Jennifer Hurvitz – “Exposing the myths of prenups”.

In order for a prenuptial or postnuptial agreement to be valid, it must: 

1. Be voluntarily signed by both parties;
2. Fully disclose all property, money, and other assets; 
3. Represent a fair and reasonable agreement. 

For a prenuptial agreement, the contract must also be executed prior to marriage. A contract signed after the wedding—even if on the same day—would be considered a postnuptial agreement. 

Failure to comply with these elements could partially or completely invalidate an agreement.

For more on the topic of prenuptial agreements, listen to Lauren’s podcast with Jennifer Hurvitz – “Exposing the myths of prenups”.

As a matter of law, these agreements cannot:

• • Dictate reproduction requirements (such as when the couple will conceive, or how many children they’ll have); 
  • Limit future child support obligations or custody orders;
  • Induce one spouse or the other to engage in criminal behavior.

Judges can also reject other clauses that don’t meet the minimum legal standard.

For more on the topic of prenuptial agreements, listen to Lauren’s podcast with Jennifer Hurvitz – “Exposing the myths of prenups”.

For a cohabitation agreement to be valid, it must be: 

1. 1. In writing; 
   2. Signed by both parties; and,
   3. Agreed to in good faith.

Furthermore, since prostitution is illegal, any cohabitation agreement made in consideration of sexual services is likely invalid.

New York courts have sometimes upheld oral and “implied” contracts between cohabitating partners. However, these agreements are far less secure, and it’s always better to outline important issues in a written document. 

To register for a free webinar “Cohabitation Agreements: What They Are & Why You Need One” – head here.

Cohabitation agreements cover similar issues addressed by both pre and postnuptial agreements. They may:

• • Classify and divide property;
  • Outline financial obligations;
  • Allocate debt distribution;
  • Dictate health insurance responsibilities; 
  • Stipulate inheritance rights;
  • Assign the power to act as a health care proxy during emergencies; 
  • Specify guardian and/or incapacitation preferences;
  • Outline child support and custody arrangements in the event of a breakup (subject to judicial approval); and 
  • Define jurisdictions for dispute resolution.

To register for a free webinar “Cohabitation Agreements: What They Are & Why You Need One” – head here.

While useful, it’s difficult for cohabitation agreements to match the scope and breadth of marital protections. Agreements that are vague, or fail to address certain topics may leave partners vulnerable to future legal disputes.

In addition, other jurisdictions do not always recognize the validity of cohabitation agreements, and can cause problems for couples moving across state lines.

Furthermore, these contracts do not automatically transfer to marriage. In order for protections to continue, partners must execute a valid prenuptial agreement.

To register for a free webinar “Cohabitation Agreements: What They Are & Why You Need One” – head here.

In New York, any adult—regardless of gender, sexual orientation, marital status, age, or race—can adopt. Interested individuals must simply fill out an application, complete a home inspection, and pass a background check.

You cannot adopt if your background check reveals a felony conviction for: 

• • Child abuse or neglect;
  • Spousal abuse; 
  • Crimes against children; 
  • Violent or sexual crimes; or,
  • A felony for drugs or physical assault in the past five years.

There are two main types of adoption: closed and open.

In a closed adoption, records are usually sealed. After adoption, birth and adoptive parents do not have contact, and children are largely left in the dark as to their origins. 

In contrast, the records of an open adoption are left open. Here, families are allowed to communicate, with questions as to “how much” and “when” often agreed upon in a Post Adoption Contract Agreement.

Adoption is not quick. Once an application is filed, it often takes at six months (or more) to match with the right child. Afterwards, an additional three to twelve might be needed, before anything can be finalized. 

If the adoption is for a family member or close friend, this timeline can be shortened (since the initial match time isn’t necessary). However, even family member adoptions can take months, especially if a biological parent disputes the arrangement.