Divorce in New York - Process, State Laws & Tips
Divorce is a process - both legal and emotional - and can seem overwhelming and scary. But equipping yourself with the right knowledge and getting your expectations in order can help ease the whole experience. Let’s get started.
New York Divorce Court
In New York, the Supreme Court handles all divorce cases. A Supreme Court judge is the only judge who can sign a Judgment of Divorce, thereby ending a marriage. Divorces may be contested or uncontested. Divorcing couples must address any issues concerning visitation, child support, and custody. Until the resolution of all parenting and financial matters, a Supreme Court judge will not sign a Judgment of Divorce.
Couples may choose to use ADR (Alternative Dispute Resolution), various processes that include mediation and collaborative law whereby both sides work together to solve any conflicts which may exist.
What are the Residency Requirements for Divorce in New York?
When divorcing in New York, a couple must meet the state's residency requirements. These include how long you or your spouse has lived in New York and whether the couple has legal grounds to get a divorce. You must also know where your spouse is to get a divorce in New York. Service, the delivery of court papers, must be made directly to the Defendant. If the location of a spouse is unknown, you must consult with the Supreme Court Clerk's office regarding alternative ways to serve them.
Uncontested Divorce in New York
Divorcing in New York is often complicated. For uncontested divorces where no children under 21 exist, couples may take advantage of the DIY Uncontested Divorce Program. Divorcing couples who have children under 21 years of age may use the Uncontested Divorce Packet. Couples seeking a contested divorce should consult with a lawyer first. It may take many visits to the New York Supreme Court before resolving any disputed issues and receiving a Judgment of Divorce.
Child Visitation Rights for Divorce in New York
Courts generally favor a child having a relationship with both parents. When the Court grants sole custody to one parent, the Court will usually also give the other parent visitation time. Although visitation and custody are separate issues, the Court typically decides them at the same hearing in conjunction with one another. A parent may, however, file a petition for visitation separately. When determining visitation, also referred to as parenting time, the Court uses the "best interests of the child" standard. In addition to parents, grandparents and siblings may request visitation. Except in situations where the court terminated visiting rights, parents have a right to see a child in foster care. Unless parents can agree on a visitation schedule, a court will determine it for them.
How Does Child and Spousal Support for Divorce in New York Work?
Family Court presides over matters involving the child and spousal support.
Child Support - In New York, both parents must provide child support until the child reaches 21 years of age unless emancipated. An emancipated child refers to a child who is under 21 years of age, married or a member of the military. The custodial parent, the parent who is charged with physical custody of the child most of the time, can receive child support from the non-custodial parent irrespective of whether the custodial parent has the means to support the child on their own or the parents live together and one parent refuses to pay on their own. If the child is in foster care, both parents must pay child support.
Spousal Support - While married, couples in New York must financially support each other. The support is called spousal support. As long as the couple is married, spousal support can continue indefinitely. Where spouses are divorced or in the process of divorcing, the support one spouse pays to the other is called maintenance.
Custody for Divorce in New York
A Custody Order assigns the responsibility of caring for and raising a child to the parent(s) or a third party. Custody is either legal or physical. A Court has the discretion to make decisions about custody up until the child turns 18 years of age. When determining child custody, the Court uses the “best interest of the child” standard. In the absence of a court order, both parents enjoy equal rights to legal and physical custody.
Legal custody refers to the authority to make decisions involving a child’s medical care and what religion the child will practice. Legal custody may be joint or sole. If a Court grants joint custody, parents make major decisions together. Where one parent has sole custody, that parent may make such decisions without consulting the other parent.
The parent with physical or residential custody is responsible for the physical care and supervision of the child. Physical custody may be joint or sole. Joint custody means the child lives with each parent 50 percent of the time. Sole custody is when the child lives with one parent more than 50 percent of the time. Where one parent has sole physical custody, the other parent will generally have visitation.
New York Divorce Resources
To have the most positive experience possible, take care to hire a skilled and experienced divorce attorney in whom you can place your confidence and feel comfortable being around. Visit NYCourts.gov for further information about divorcing in New York.
Checklist of resources you’ll need (lawyers, coaches, mediators, appraisers)
|Divorced Professionals||National Association of Divorced Professionals (NAPD)||TheNADP.com|
|Divorce Coach||Certified Divorced Coaches (CDC)||CertifiedDivorceCoach.com|
|Financial Planners||Association of Divorce Financial Planners(ADFP)||DivorceAndFinance.org|
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Legal Disclaimer: This article is intended for informational purposes only and should not be relied upon as legal advice on any subject matter. Consult with an attorney for more information regarding your individual situation.