New York City Divorce Attorney
When your happily-after-ever marriage becomes neither happy nor ever after, where do you turn for help? Even an amicable divorce can be complicated. That is why finding the right NYC divorce lawyer is critical: an attorney who will represent your best interests from beginning to end.
As New York City attorneys whose practice is focused exclusively on matrimonial and family law, the Law Offices of Vivien I. Stark, approach each case with the personal attention it deserves and draws on our more than thirty years of experience to help our clients reach their goals.
One thing is constant, and that is our commitment to being strategically aggressive. At the Law Offices of Vivien I. Stark, we do not waste your time or money fighting for the sake of fighting. Our goal is to get you the best possible outcome at the lowest possible cost, no matter what your situation happens to be.
We protect your rights when your marriage has gone wrong. Contact the effective New York City divorce lawyers at the Law Offices of Vivien I. Stark. We serve clients in Manhattan, Brooklyn, Queens, the Bronx, and Staten Island.
New York City Divorce Resources:
- NY Residency Requirements for Divorce
- No-Fault Divorce vs. Fault-Based Divorce
- Post-Divorce Property Division
- New York Child Custody
- New York Child Support
- New York Alimony
- Contact our New York Divorce Attorneys
Let Our New York City Divorce Attorneys Help You
Even in an amicable divorce, both spouses need the representation of an experienced divorce attorney. Divorces are complex and emotionally challenging. No one should make critical legal choices without a firm understanding of New York divorce law and a strong advocate beside them to ensure a fair and enforceable divorce agreement.
The NYC divorce attorneys at the Law Offices of Vivien I. Stark will do the following and more on your behalf:
- Draft an accurate, legally sound divorce order without ambiguous terms;
- File all necessary paperwork and motions in a complete and timely fashion;
- Reduce your stress and provide you with emotional support;
- Help you avoid unnecessary delays and keep your divorce moving through the family law system;
- Use their professional experience and knowledge to your advantage in any negotiations and proceedings;
- Help you fight for custody and visitation rights to your child(ren);
- Guide you in your decision-making without any emotional bias; and
- Think of and include details that you might not address.
Call the Law Offices of Vivien I. Stark to learn about what our family law firm can do to support you through your NYC divorce. We can handle all aspects of the divorce process for you, from alimony to child custody, support, and visitation.
Residency Requirement and Waiting Period for New York Divorce
Every state, including New York, has a set of prerequisites spouses must meet before obtaining a legal divorce. To get a divorce in New York, one of the following scenarios must apply:
- The spouses were married in New York, and one spouse has lived in the state for at least one year;
- The spouses lived in New York as a married couple, and either spouse has lived in the state for at least one year;
- The grounds for divorce arose in New York, and either spouse has lived in the state for at least one year at the time the divorce is filed; or
- Either spouse has lived in the state for at least two years.
Unlike other states, New York has no formal waiting period before a judge can enter a final decree of divorce. Same-sex couples who marry legally in another marriage-equality state can get divorced in New York as long as they meet the residency requirements.
No-Fault Vs. Fault-Based Divorce in New York
New York is rare in that it recognizes both no-fault and fault-based grounds for divorce. To seek a no-fault divorce in New York, spouses must be separated for at least one year, or there must be an “irretrievable breakdown of the marriage” for at least six months.
Spouses may also seek a divorce after entering into a separation agreement and living apart for a minimum of one year. For a fault-based divorce, one spouse must prove the other spouse is to blame for the marriage’s breakdown.
New York recognizes the following fault-based grounds for divorce:
- Cruelty, including mental or physical abuse;
- Abandonment for one or more years;
- Imprisonment for three or more years; and
Fault-based divorces take longer and cost more than no-fault divorces. There are situations where proving a spouse’s fault can benefit the innocent spouse in a property or custody award.
Should Your Marriage Be Annulled or Do You Need a Divorce?
In some cases, you will not need to turn to a divorce, as annulment is more appropriate. However, there are some distinct differences between divorce and annulment. When you get a marriage annulled, it invalidates your marriage. This means your marriage will not have legally existed. With divorce, you are ending a valid marriage. There are specific requirements that must be met for annulment to apply. These include:
- Lack of mental capacity to consent to marriage
- Inability to give consent to the marriage due to age
- Consenting to the marriage through fraud, duress, pressure, or force
- The inability to consummate the marriage if you did not know your spouse was unable to engage in sexual intercourse or activity
- Either spouse having an incurable mental illness for at least five years
If you qualify for an annulment, you will still need to work out the terms of your separation with your ex, especially if you have shared children. Similar to the terms of a divorce settlement, you may need to work with your ex to determine the division of your shared property, whether maintenance payments apply, and your child custody or visitation plans.
What is the Divorce Process in New York?
The first step in any New York divorce is ensuring that one or both spouses meet the state’s strict residency requirements for filing a divorce within its borders. Once the filing spouse is positive their divorce meets these rules, they must procure and complete all New York’s divorce forms.
These forms include:
- Summons With Notice (Form UD-1); or
- Summons (Form UD-1a) and “Verified Complaint (Form UD-2).
Either Summons will start the divorce action in the Supreme Court. These (and other needed forms) are available on the New York Courts website.
Once the chosen Summons is complete, the filing spouse must make two additional copies and file them with their county clerk’s office or the county clerk’s office where their spouse resides. The county clerk will assign a case Index Number and filing date to the forms.
A complete set of the filed forms must be legally served or delivered to the other spouse within 120 days of the original filing date. An Affidavit of Defendant (Form UD-7) and its instructions must be attached. If the other spouse agrees to the divorce, they will complete and return this document within forty days of service.
Should the spouses share children, a copy of the Child Support Standards Chart must be included with the Summons. Any adult resident of New York, other than the filing spouse, can serve the documents. Service requires handing the papers to the other spouse in person any day of the week but Sunday.
When the other spouse lives in a different state, that state’s service rules must be followed.
Return of the Affidavit of Defendant
A spouse who agrees to a divorce should sign and send back the Affidavit of Defendant form within forty days. If not, the filing spouse must have the adult who served the divorce documents prepare an Affidavit of Service (Form UD-3) proving the other spouse received their copies.
Next, the filing spouse must fill out and have another adult mail a Sworn Statement of Removal of Barriers to Remarriage (Form UD-4) to the other spouse if the marriage was part of a religious ceremony. Should the other spouse file a Notice of Appearance disagreeing with anything in the divorce documents during this time, the divorce becomes contested.
If the other spouse signs the Affidavit of Defendant, the divorce is uncontested and may be placed on the court’s calendar. Otherwise, forty days must pass from the service date before any action is taken.
Placing a divorce case on the court’s calendar requires the completion of more than eleven forms, all of which may be found on the New York Courts website. Added documentation is needed if there are children in the marriage and if the divorce is contested.
Once these documents are complete and filed with the clerk, they are submitted to the judge. If there are mistakes within the paperwork or with the timeliness or procedure followed in filing the documents, the court can reject the papers altogether or postpone the court date until the paperwork is correct.
Mistakes are easy to make if one is not a divorce professional dealing with the legal system daily. Even if a divorce is expected to be uncontested, it is wise to procure the help of an experienced New York divorce attorney to ensure the technicalities of the process go smoothly, and a divorce is not thrown out of court due to a formality.
Property Division in New York
Marital property is divided equitably, not equally, in New York. This means that property and debts acquired during the marriage are divided as fairly as possible between the spouses.
The New York family court will divide marital property in divorce after considering the following factors:
- The age and health of each spouse;
- The length of the marriage;
- Each spouse’s income and assets;
- Any health insurance or inheritance rights a spouse loses because of the divorce;
- Whether or not the court awards spousal maintenance;
- Either spouse’s contributions as a stay-at-home parent or homemaker;
- Either spouse’s contributions to the assets;
- Each spouse’s earning capacity;
- The tax consequences of the division of the assets;
- Whether either spouse has wasted the marital assets; and
- Any other factor the family court deems relevant.
Each spouse retains their separate property in a divorce. This includes:
- Property acquired before the marriage;
- Inheritances and gifts received by one spouse alone;
- Personal injury awards for one spouse; and
- Any property distinguished as separate property in a prenuptial or postnuptial agreement.
It may be difficult to distinguish between marital and separate property. It is best to consult with an experienced NYC divorce attorney to determine and distribute assets in a divorce correctly.
Child Custody in New York
As part of your divorce proceedings, you may work with your spouse to determine your child custody and visitation agreement. There are two primary types of child custody: legal custody and physical custody. Legal custody refers to the decision of making responsibilities, while physical custody refers to where the children primarily reside.
These can be further broken down into either joint or sole custody agreements. In sole custody agreements, only one parent is responsible for physical or legal custody. However, with joint custody agreements, parents work together and share legal or physical custody of their children.
Legal custody describes all of the major decision-making that comes with your child’s upbringing. This might include:
- Where do your children go to school
- What religion they are raised in
- What foods do they eat
- What extracurricular activities do they participate in
- All major medical decisions
While you and your spouse may not agree on much at this point in time, it is imperative that you determine whether you can agree to work together to raise your children. If you can work together, a joint legal custody venture may be appropriate. However, if you cannot agree, the family courts have the authority to award sole legal custody to the custodial parent, who will then be solely responsible for all major decisions regarding the child’s upbringing until they reach the legal age of 18.
Physical custody describes where your children primarily reside. When you divorce, one parent will generally become the custodial parent, while the other will become the non-custodial parent. When children spend significantly more time in one parent’s household, this parent will typically be designated the custodial parent. If you can split physical custody 50/50, you may enter into a joint physical custody agreement.
However, if the courts determine it is in the child’s best interest for one parent to have sole physical custody, they may set visitation rights or a parenting time schedule based on your child’s needs. If the court has concerns that the non-custodial parent may be a risk to the child’s welfare, they may order supervised visitation rights as part of your child custody agreement.
How Child Custody and Visitation is Established During Divorce
All New York child custody and visitation orders are guided by the best interests of the parents’ children. While parents are free to make their custody agreements, the New York family court may step in when parents disagree.
When determining children’s best interests, the court considers the following and more:
- The emotional bond between the children and parents;
- The children’s age, mental and physical health;
- The parents’ lifestyles, and each parent’s ability to provide the child with food, shelter, clothing, and medical care;
- Each parent’s physical and mental health;
- Either parent’s history of domestic violence;
- The children’s relationship with siblings and extended family members;
- The parents’ geographic proximity;
- The parents’ ability to work together;
- Each parent’s willingness to encourage a relationship between the children and the other parent; and
- Any other relevant factor.
Child Support in New York
New York has statutory guidelines for calculating child support. Child support is based primarily on the combined income of both parents. Generally, the noncustodial parent pays child support to the custodial parent.
A family court will also consider:
- Each parent’s financial resources;
- The child’s health or special needs; and
- The standard of living to which the child is accustomed.
New York requires that child support continue until the age of twenty-one. Parents must support their children financially, and there are consequences for parents who try to avoid their child support obligation.
Spousal Support in New York
There is an important difference between spousal maintenance and spousal support in New York. Spousal support is money paid by one spouse to the other while the couple is still married. Spousal maintenance is money paid by one spouse to the other following the divorce.
Spouses have a legal duty to support each other. Therefore, a spouse can seek spousal support in family court because the other spouse is not meeting his or her support obligations. Spousal support may be modified during a pending divorce or terminated upon the granting of a divorce.
The court determines whether to award spousal maintenance during a NYC divorce proceeding. A spousal maintenance award is typically for life or a specific period of time. Either gender may be awarded spousal support and maintenance.
The family court examines the couple’s standard of living while married and the property and income of each spouse when deciding to award spousal maintenance. The family court considers the following factors to set the amount and duration of a spousal maintenance award:
- The income and property of each spouse, including each spouses’ share of the marital property as divided by the court;
- The length of the marriage;
- The age and health of the parties;
- The present and future earning capacity of both spouses;
- A spouse’s need to incur training or educational expenses;
- The existence and duration of a joint household before marriage or separate households before divorce;
- Acts by one spouse against the other that inhibit the other’s earning capacity or ability to get a job;
- The ability of the party seeking maintenance to become self-supporting, and the time and training that will require;
- Whether the spouse seeking maintenance has reduced or lost lifetime earning capacity as a result of having forgone or delayed education, training, employment or career opportunities during the marriage;
- Where the children live;
- Whether a spouse’s earning capacity is inhibited by ongoing care of children, step-children, adult children with disabilities, or elderly parents or in-laws;
- Whether one spouse will have trouble finding work due to age or absence from the workforce;
- Exceptional, additional expenses for the children;
- The tax consequences to each party;
- The equitable distribution of marital property;
- The contributions and services of the party seeking maintenance as a spouse, parent, wage earner, homemaker and to the career or career potential of the other party;
- The wasteful dissipation of marital property by either spouse;
- Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
- The loss, availability, and cost of health insurance; and
- Any other factor which the court expressly finds just and proper.
New York City Divorce FAQ
While the end of a marriage may be devastating for some, for others, it can be a lifeline that allows you to regain control of your future and live your life as you envisioned. It is important to understand the intricacies of New York State divorce laws when you are divorcing in NYC.
You may have many unanswered questions about your impending divorce proceedings and what to expect next. For this reason, we have compiled this brief FAQ that discusses some of the nuances of New York divorce laws. If you have additional questions we do not cover here, do not hesitate to connect with our family law attorneys during a confidential consultation.
Does it matter who files for divorce first in NY?
The court system treats both spouses equally without regard to who initiated the divorce proceedings. However, strategically, it could matter which spouse files for divorce first. This is particularly true if the end of the relationship is particularly contentious or one spouse is expected to contest the divorce filings.
How many years do you have to be married to get alimony?
The length of your marriage does not necessarily determine whether alimony will apply in your case. Spouses married for decades or as few as one year may be eligible for alimony. However, the longer the length of the marriage, the longer alimony may be expected, depending on the specific circumstances of your case. Every divorce is different, so you will need to work with your New York City alimony attorney to protect your rights, whether you are seeking alimony or expecting your spouse to do so.
Can my spouse refuse to divorce in New York City?
Technically, any spouse can refuse to sign the divorce papers. The defendant in your case will be the non-filing spouse. However, this will not prevent you from obtaining a divorce. The family courts will only take into consideration the petitioner’s divorce filing if the non-filing spouse refuses to sign your divorce papers. This is commonly referred to as a default divorce.
Can you date while going through a divorce?
While you are in the middle of a divorce, you are legally allowed to date someone else. However, this could be risky, as being legally married could result in allegations of adultery. This could have a significant impact on how your divorce proceedings unfold.
Does adultery affect divorce in NY?
Yes, adultery can affect your New York City divorce proceedings. While the state follows equitable distribution as far as the division of your marital property is concerned, if either spouse committed adultery, this could have a significant impact on not only how marital property is distributed but whether alimony is paid, your child custody, support, and visitation proceedings, and every other aspect of your divorce. This is, in part, because New York State allows for both fault and no-fault divorces to be filed.
Contact an Experienced New York City Divorce Attorney
To learn more about divorce in New York City, contact the Law Offices of Vivien I. Stark. Our NYC divorce attorneys want to help you with your divorce. We have the expertise and resources to handle quick, easy divorce or difficult, high-conflict divorce cases.
Our skilled New York City divorce attorneys can move you toward a more stable future. Call us today to find out how a New York family law professional can relieve some of the excessive stress and strain that accompanies divorce.