Written by attorney Michael C. Barrows

New York Divorce FAQ 3

What is a divorce?

Divorce is the final, legal ending of a marriage by court order. If you have a divorce case in court, you may hear lawyers and court staff call it a matrimonial action. The person who starts the divorce is called the plaintiff, and the other spouse is called the defendant.

Where do I go to for a divorce?

The Supreme Court of the State of New York is the only court that handles divorce cases, and a Supreme Court judge is the only person who can legally grant a divorce. You should go to the Supreme Court in the county where you or your spouse now live. You cannot get a divorce in Family Court.

Although Family Court cannot give you a divorce, you can go to your local Family Court for help with child support, child custody, child visitation, spousal support (also known as spousal maintenance), and paternity.

Visit for more information on choosing the right court for your particular issue.

What is an annulment?

Unlike a divorce that ends a valid marriage, an annulment establishes that the marriage is not legally valid, and the grounds for annulment are different from a divorce. To get an annulment, you will need to prove ONE of the following:

• Bigamy: one of the parties was still married to someone else at the time of the second marriage.

• Either spouse was incurably unable to have sexual intercourse at the time of the marriage.

• After marriage, either spouse becomes incurably insane for five (5) years or more. The Court may require the sane spouse to support the Marriage between persons under 18, if the spouse under 18 wants the annulment. The annulment will not be granted if the person under 18 freely cohabited(had sexual relations) with the other spouse after turning 18.

• Spouse is unable to understand the nature, effect and consequences of marriage because of mental incapacity.

• Spouse agreed to marry as a result of force or duress by the other.

• Fraud (most common ground): the consent to marry was obtained by fraud that would have deceived an ordinarily prudent person and was material to obtaining the otherparty's consent. The fraud must go to the essence of the marriage contract. Concealment of a material fact may constitute fraud. Sexual intercourse evidencing forgiveness is an absolute defense.

How do I start a divorce case?

You will need to buy an Index Number at the County Clerk’s Office and file a Summons with Notice or a Summons andVerified Complaint (which has the reasons for the divorce). Next, you will need to have another person over the age of 18 who is not a party to the action serve your spouse with the papers.

What is a Residency Requirement and Grounds for Divorce?

To start a divorce case, what legal requirements do I need to meet?

(1) Residency: Before a New York Court can give you a divorce, you need to show that you and/or your spouse have lived in New York State for a certain amount of time, without interruption, generally for one year. For more information on the residency requirement, see pp. 1-3 of the Uncontested Divorce Forms Packet Instructions.

(2) Grounds: You need to have grounds – a legally acceptable reason – to get divorced in New York. That means that you need to prove one of the grounds listed below:

• Cruel and Inhuman treatment

• Abandonment

• Confinement in prison for 3 or more consecutive years

• Adultery

• Living separate and apart pursuant to a separationjudgment or decree

• Living separate and apart pursuant to a separation agreement

• Irretrievable breakdown in the relationship for a period of at least 6 months (for divorce proceedings started on/after October 12, 2010)

For more details on grounds, see pages 3-5 of the Uncontested Divorce Forms Packet Instructions located at:

What is the difference between a Contested and an Uncontested Divorce?

UNCONTESTED: Your divorce will be uncontested if both you and your spouse:

• Want to get a divorce

• Agree about what will happen with your children, your finances, your property after the divorce

If your divorce is uncontested, and you and your spouse have reached agreement on all financial and parenting issues, you may use the Court’s free Uncontested Divorce Forms Packet.

If you have not reached agreement, and you think you and your spouse could come to an agreement with some help, you might want to consider divorce mediation or collaborative family law.

CONTESTED: Your divorce will be contested if either you or your spouse:

• Do not want to get a divorce

• Disagree about the grounds (legal reasons) for the divorce

• Disagree about what will happen with your children, your finances, your property after the divorce.

Because the judge will require detailed information to decide the issues you disagree about, your contested divorce will require you and your spouse to go to the Supreme Court numerous times. If your divorce will be contested, you should seriously consider finding a lawyer to represent you.

What is Custody?

Custody is a parent’s legal right to control his or her child’s upbringing. It may also be referred to as parenting. A parent who does not have custody will still likely be entitled tovisitation, also known as spending time with the child(ren). Both parents have a legal right to ask for custody and visitation in a divorce proceeding.

What is the difference between legal custody and physical custody?

Custody has two parts: legal and physical.

Legal custody: the right to make major decisions about your child. This includes where your child goes to school, what kind of religious training a child receives, whether your child gets surgery.

Physical custody: who the child lives with on a day-to-day basis. A parent with primary physical custody is sometimes called the “custodial parent" or the child’s “primary caretaker."

How will a judge decide custody?

When determining custody and visitation, a judge will consider what is in the best interests of the child(ren). Some factors a judge may consider include:

• who has been the child’s primary caretaker

• the quality of each parent’s home environment

• how “fit" the judge thinks each parent is (stable home and lifestyle, good judgment, has a job, good mental and physical health)

• which parent the child is living with now, and for how long

• each parent’s ability to provide emotional and intellectual support for the child

• which parent allows the other parent into the child’s life (does not try to cut out the other parent)

• if the child is old enough, which parent the child wants to live with

• whether your child would be separated from any siblings

• whether either parent has been abusive

A judge must consider whether there has been domestic violence. For more detailed answers to frequently asked questions on custody, visit or

What is child support?

New York law says that children are entitled to share in the income and standard of living of both parents. Child supportis the money that the non-custodial parent pays to the custodial parent if the child is under 21. Child support is based on a strict formula. See the Child Support Standards Chart.

Child support may be awarded by the Supreme Court as part of a divorce, or in Family Court as part of a child support proceeding.

How does a court calculate child support?

First, the court determines each parent's net income. Net income is gross income minus certain deductions, such as FICA, NYC income tax, Yonkers income tax, spousal support and child support paid for other child(ren). Second, the court adds the parents' net income together and multiplies that number by a percentage, depending on how many children they have:

17% for one child

25% for two children

29% for three children

31% for four children

no less than 35% for five or more children

That amountis then divided based on the proportion of each parent’s net income to the combined parental net income.

In addition to the basic child support obligation, a spouse may also be required to pay for child care expenses, educational expenses and medical expenses.

What happens to property after a divorce?

During the divorce both spouses have to tell the judge about their income and any debts they owe. When the court grants a divorce, property will be divided equitably (though not always equally) between the spouses.

What is the Equitable Distribution Law?

New York’s Equitable Distribution Law recognizes marriage as an economic as well as a social partnership. The law requires that a judge divide property as fairly as possible.

The Equitable Distribution Law talks about two types of property for purposes of divorce: marital property andseparate property. Marital property will be divided between the two spouses.

Marital Property: all property either spouse bought during the marriage, regardless of whose name is on the property. Pension plans and other retirement plans are considered marital property. The portion of marital property earned during the marriage will be divided by the court.

Separate Property: property a spouse owned before the marriage, or any inheritance or personal injury payments or gifts from someone other than the spouse during the marriage.

To see the factors a court should consider in making an equitable distribution award, see Domestic Relations Law § 236(B)(5)(d).

Can I get spousal maintenance (sometimes called "alimony") ?

Spousal maintenance (sometimes called alimony) is money an ex-spouse may be required to pay the other spouse after they get divorced. When spousal maintenance is ordered by the court, it is usually for a limited time.

You may be able to get maintenance if you really need it and your ex-spouse can afford to pay it. A law was passed in 2010 that provides a formula for judges to apply and factors for judges to consider in calculating temporary spousal maintenance.

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