For anyone working in the New York State divorce process—whether as a lawyer, mediator, counselor, or paralegal—there are several key laws and principles they should be wellversed in. Here are some essential laws and concepts that are important in this field:
1. Grounds for Divorce
NoFault Divorce: New York State Divorce Process, one of the most common grounds is irretrievable breakdown of the marriage for at least six months. This is considered nofault and doesn't require proving wrongdoing.
FaultBased Grounds: These include adultery, abandonment, cruelty, or imprisonment for three years or more. While nofault divorce is now common, faultbased grounds can still be used.
2. Equitable Distribution (New York Domestic Relations Law §236(B))
New York follows the principle of equitable distribution rather than community property. Marital assets (those acquired during the marriage) are divided equitably, which doesn’t necessarily mean equally.
Courts consider various factors such as the length of the marriage, income and property of each spouse, and contributions to the marriage (including nonmonetary contributions like homemaking).
3. Child Custody (Domestic Relations Law §240)
New York courts focus on the best interests of the child when determining custody arrangements.
Custody can be sole or joint, with both legal (decisionmaking power) and physical (where the child lives) custody subject to court decisions.
Parenting time (formerly known as visitation) is also crucial and generally provided to the noncustodial parent unless it is deemed not in the child's best interest.
4. Child Support (Domestic Relations Law §240(1b))
The CSSA provides guidelines based on the combined parental income, allocating a percentage based on the number of children (e.g., 17% for one child, 25% for two children).
Courts also consider the child’s needs, the custodial parent’s resources, and the standard of living prior to the divorce.
5. Spousal Support (Alimony) (Domestic Relations Law §236(B))
Temporary Maintenance (Pendente Lite): During the divorce process, one spouse may be required to provide temporary support to the other. This is calculated using a formula.
PostDivorce Maintenance: After divorce, maintenance may be awarded based on factors such as length of the marriage, earning capacity of both spouses, and the need for one spouse to become selfsupporting.
6. Domestic Violence and Orders of Protection
In cases involving domestic violence, victims can request an Order of Protection from the court. This could affect custody, support, and other aspects of the divorce.
Courts are mandated to consider the impact of domestic violence when making custody or visitation decisions.
7. Divorce Mediation and Collaborative Divorce
Mediation: This is a nonadversarial process that allows couples to negotiate the terms of their divorce with the help of a neutral mediator. Knowledge of mediation principles and relevant statutes is essential for professionals in this area.
Collaborative Divorce: This is another alternative to traditional litigation, where both parties and their attorneys agree to resolve issues outside of court.
8. Residency Requirements (Domestic Relations Law §230)
To file for divorce in New York, the residency requirements must be met:
Either spouse must have lived in New York for at least two continuous years before filing, or
One year if the couple was married in New York, lived in New York during the marriage, or the grounds for divorce occurred in New York.
9. Marital Agreements
Prenuptial Agreements: These agreements, made before marriage, outline how assets will be divided if the marriage ends.
Postnuptial Agreements: Similar to prenuptial agreements but entered into after marriage.
Both are enforceable if executed properly, but courts can set aside provisions that are deemed unfair or unenforceable.
10. Legal Separation (Domestic Relations Law §170(6))
Instead of divorce, couples can seek a legal separation, where they live apart and establish legal arrangements for property, custody, and support. Legal separation can later serve as grounds for divorce if the couple remains separated for one year.
11. Appeals and Modifications
After a divorce decree is issued, either party can file an appeal if they believe the court made an error.
Modification: Divorce judgments regarding custody, child support, or spousal support can be modified postdivorce if there is a substantial change in circumstances.
12. Attorney's Fees
In many divorce cases, one party may be required to pay for the legal fees of the other, especially if there is a disparity in financial resources. Courts will evaluate the financial positions of both spouses when determining whether Reckless Driving Attorney In New Jersey fees should be awarded.
Understanding these core laws and principles is vital for anyone involved in the divorce process in New York.
