New York Ground Rules

What are the grounds for divorce in New York?

New York has both fault and no-fault grounds for divorce.

1) cruel and inhuman treatment
2) abandonment for one or more years
3) imprisonment for three or more consecutive years
4) adultery (which can include “deviant sexual intercourse”)

As of October 14, 2010, there is one no-fault ground for divorce: a claim, made under oath by either the husband or wife, that the marriage has been irretrievably broken for at least six months.

All divorces that commenced prior to October 14, 2010, must be based on only the fault grounds; divorces on or after October 14, 2010, can use either fault or no-fault divorce.

If you’re seeking a no-fault divorce, you must prove that you’ve resolved all your divorce-related issues – including division of property, spousal support, child support, and child custody – before the court will grant your divorce.< A divorce settlement agreement or a court order can prove that you’ve resolved all these issues.

If you’re seeking a divorce based on one of the fault grounds, you’ll have to prove to a judge that your spouse – not you –actually committed the misconduct. For example, if you’re using adultery as the fault ground for your divorce, the “innocent” spouse (you, in this example) is the one who has to file for divorce. You will also have to prove that your spouse actually committed adultery,

Annulment

In a divorce, the court declares the marriage contract broken; in an annulment, the court says that there never was a marriage. Annulment is much more difficult to prove — and is much rarer — than divorce. If you want to go this route, you will definitely need to speak to a New York attorney. Of course, if you want an annulment for religious reasons, you’ll need to consult with your priest, minister, or rabbi as well.

Documentation

You’ll need to provide your divorce lawyer with the following documentation in order to proceed with your divorce. Start gathering everything as soon as possible so that you can find out what might be missing and submit any requests for duplicates. You’ll need both personal data and financial data.

Personal Data

• Full addresses and phone numbers of both parties.
• Full names, birth dates, and addresses of all children of the marriage, their school and grade.
• Information about any prior marriage of either spouse, including a certified copy of the divorce decree.
• A copy of any domestic contracts (e.g. a prenuptial agreement).
• Information about any previous legal proceedings between the spouses or involving any of the children.
• Dates and particulars about any previous separations, attempts at reconciliation, or marriage counseling.

Financial Data

• Your previous year’s income tax return, and any related data from the IRS.
• Information about your current income – e.g., a current pay slip.
• A list of substantial assets and liabilities of both spouses.

Interim Maintenance (a.k.a. <Pendente Lite or Temporary Maintenance)

As of December 15, 2010, “interim maintenance” is required when either a husband or wife’s income is less than 66% of the other. Unless deemed to be “unjust or inappropriate,” the courts must award “presumptive amount” based on a formula that takes into consideration the respective incomes of both the husband and wife. “Income” refers to income of all kinds, including that from income-producing property that is subject to marital distribution. The formula applies to up to $500,000 of the payor’s income, but may be increased by the court.

Legal and Expert Fees

As of December 15, 2010, the courts will award attorney fees on a “timely basis” to the spouse with the lesser income. This is designed to ensure that both spouses are properly represented, regardless of their individual economic circumstances. Fees will also be awarded to for post-divorce enforcement and modification proceedings, which can include issues such as: child support, visitation, and custody, spousal maintenance, distributive awards, and equitable distribution.