Divorce Frequently Asked Questions

It is hard to predict exactly how long it will take you to get divorced in New York State.  However, there are some general rules.

Uncontested Divorce:

If you and your spouse agree on everything, without any exceptions, before you file for a divorce, then you can have an attorney file for an uncontested divorce.  Typically, this means that the attorney will complete the paperwork and file it with the court.  Some courts may still require you to show up in court, but, most courts will just accept the paperwork and grant you a divorce.  Even in an uncontested divorce, you and your spouse will have to sign certain papers.  Although, you should hire an attorney to complete the paperwork, you could attempt to do it yourself.

Once all the paperwork is submitted, it usually takes between 3 to 6 months for the court to verify and sign the Judgment of Divorce.

Contested Divorce:

A contested divorce is basically any divorce that is not an uncontested divorce.  Within this category, there could be divorces that take about 1 year and if the divorce is very complicated or if the parties want a trial, the divorce could take 2 to 3 years.

Generally, it doesn’t matter if you got married in another State or in another country as to whether you qualify to get divorced in New York.  However, if you were married in another State or another country, then in order to get divorced in New York, then you have to satisfy one of the following:

  • Either you OR your spouse have lived in New York State for at least two years immediately prior to filing for divorce; OR
  • Both you AND your spouse currently live in New York State at the time of filing for divorce.

So, as you can see, if you can satisfy one of the above requirements, you did not have to get married in New York to get divorced in New York.

In New York State, all divorces are first heard by the Supreme Court.  In New York, the original trial court is called the “Supreme Court”.  So, although it is not called “Divorce Court”,  Supreme Court is the Court that will issue a Judgment of Divorce, which is what makes your Divorce official.

It is possible that you personally do not have to see a Judge or go to Supreme Court.  If you and your spouse agree to all the terms and conditions of your Divorce and you sign all the necessary papers, then your attorney can file the papers and inform the Supreme Court that your divorce is an “uncontested divorce’ and that no physical appearance is necessary.  So, in those cases where you and your spouse agree, then you do not have to go to Supreme Court.

Yes, you can get a divorce without your Spouse’s consent. Indeed, you can also get a divorce without your Spouse participating or showing up in court.

New York State is a no-fault divorce State, meaning that you do not have to establish any “fault” to get divorced.  It also means that you do not need your Spouse’s consent to get divorced.  The Court can grant you a divorce, regardless if your Spouse consents or doesn’t consent to the divorce.

Even if your Spouse never participates or show up in Court, you can still get a divorce. Although, you will have to go to Court and demonstrate that your Spouse was properly served and given notice of the Court date, the Court can still grant you a divorce — even without your Spouse showing up in Court.

Yes, you can get a legal annulment in New York State.  I use the term “legal”, because, you may also be able to get a “religious” annulment, however, this FAQ only discusses the parameters of a legal annulment, meaning one that is obtained from a Court.  In general terms, it is harder to get an annulment than a divorce.

Most people want an annulment for religious reasons.  However, to get an annulment you do not need a religious reason.  If you had children, you can still obtain an annulment and the annulment does not affect their status, they are still legitimate children.  If you are granted an annulment, the court is still empowered to make awards of child custody, child support, spousal maintenance (alimony) and determine the division of assets and debts.

It is typically harder to get an annulment than a divorce, because you have to prove why the marriage was invalid or that it otherwise qualifies for an annulment.

There are three categories of “marriages” that are void from their inception.  This means that the marriage technically never happened and that you are not really “married.”  Despite this fact, it is wise to have a court grant you an annulment declaring that your marriage was void from its inception.

The three categories of “marriages” that are void from their inception are:

  1. Incestuous marriage: If you are closely related than New York State will not recognize your marriage.  Some examples of incestuous marriages are Parent and Child, Siblings and marriages between Uncles/Aunts and their Nephews/Nieces.  Even if these couples believe they got married, according to New York State, these marriages never existed.  Indeed, a court can order a fine or even a prison term for parties that enter into an incestuous marriage.
  2. Bigamy: New York State does not recognize any bigamous marriages.  If you are married to one person, you cannot marry another person. The second marriage never technically existed.
  3. Improper Marriage: Only certain people can actually perform a marriage ceremony.  This list includes, but is not limited to, a religious leader, a leader of the Society for Ethical Culture, mayors, some magistrate, and judges.  If your marriage was performed by someone who was not authorized to do so, you are not married.  So in other words, your friend (unless he/she is on that list) cannot marry you.

In addition to “marriages” that are void and not really considered marriages, there are other categories of “marriages” that qualify for an annulment.  These marriages are valid until an annulment is granted.  Therefore, you have to go to Court to get these types of annulments. They are:

  1. Age of consent: In New York, you have to be of a certain age to consent to get married.  If both parties are over 18 years of age, then the marriage is legal.  If you are 17 years old, you can get married, but you need consent of the Court prior to the marriage to obtain the marriage certificate.  In New York, you cannot legally get married if you are under the age of 17 years of age.
  2. Incapable of consent. If, at the time of the marriage, the person could not mentally understand that he/she was getting married, that marriage may be able to be annulled.
  3. Incapable of entering into marriage due to physical cause. If, at the time of the marriage, the person was unable to have sexual relations, then the marriage may be able to be annulled.
  4. Marriage was due to force, duress or fraud. If the marriage was brought about due to force, duress or fraud, then it may be annulled.  An example of this would be if you threaten someone with violence unless they married you.
  5. Incurable mental illness for five or more years. This category does not require that the mental illness existed at the time of the marriage.  Any time after the marriages, if one spouse develops an incurable mental illness for five years or more, then the marriage may be annulled.

You probably have heard about mediation and more specifically about using mediation to resolve your divorce.  Before getting into the Pros and Cons of using a mediator, what is mediation?

In a divorce, a mediator is a neutral person who will help the divorcing couple reach an agreement about the terms and conditions of their divorce.  The mediator does not represent either person, but, is there to facilitate the negotiations and also to make sure that all the issues of the divorce are covered.  At the end of the mediation process, typically, the mediator will draft the divorce agreement (called “Stipulation of Settlement”).

The Pros of Mediation

The pros of mediation are as follows:

  • Saves Money: The cost for mediation will typically be thousands of dollars less than each party hiring their own attorney.
  • Saves Time: If the mediation is successful, most mediations will take only a couple of months.  This compares to divorces that typically take several months to up to 2 or 3 years.
  • You are in direct control of the process: Since you attend each mediation session, you have direct control and direct input into the process.
  • Higher rate of compliance: After your divorce, especially when there are children involved, you will still have to deal with your ex-spouse.  There is anecdotal evidence that couples who use mediation have a higher rate of complying with the divorce agreement than couples who use attorneys.

The Cons of Mediation

Although, there are many pros of mediation, there are also several disadvantages, they are:

  • Lacking legal advice: Since the mediator cannot legally represent you, you are not receiving legal advice.  Without an attorney, you may be agreeing to things that are not in your best interests and you may not be making the best decisions.
  • Both parties have to be invested: If one party is only going “through the motions in the mediation and is not really invested in seeing mediation work, then mediation will not work and will be a waste of time.
  • Could cost you more in the long-run: Although, mediation could save you money in the short term, it could cost you more in the long run.  Without an attorney, you may make a financial decision that “seems fair” but, that is against your financial interests.  Your financial decisions could cost you more money in the future.
  • Could be a waste of time: If the mediation process doesn’t work, then the time that you spent in mediation would be a waste of time and could serve to further delay your divorce.
  • Domestic Violence: When there is domestic violence, mediation is usually not a proper way to resolve the divorce.

After you are married, the default rule is that any assets that are acquired after your marriage are considered marital property.  It does not matter if only one person is listed as the owner of the property, it is still considered marital property.  So, for example, if after marriage, you buy a car, but, only one person is put on the title.  That car is considered marital property.  Another example, is if you open a bank account after marriage, even if only your name is on that bank account, that bank account will be considered marital property.

There are a few exceptions to the general rule of what is considered marital property.

  1. Gifts: If someone gave you an asset as a gift and it is clearly a gift only to you, then it starts out as separate property.  However, to keep the gift as your separate property, you have to make sure that you do not convert it to marital property.  An example will illustrate how that can happen.  A relative gives you a gift of $1,000.00 and the check states that it is your separate property and a gift only to you.  If you put the $1,000.00 in a joint account, you have now converted the separate property to marital property (there is also exception to this rule, but, for now, we will keep it simple).  You can also convert the $1,000.00 into marital property, by taking the $1,000.00 and using it to pay off a marital debt (e.g., the mortgage).
  2. Inheritance: If you received an inheritance.  Similar to a gift, if you received an inheritance, then that asset or money is your separate property.  However, also like a gift, you can convert the inheritance into marital property.
  3. Personal injury awards: If you received a personal injury award, most or all of it will typically be considered your separate property. Yet, once again, if you take the money that you received and place it in a joint account, then the award money is now considered marital property.

An asset that was clearly acquired before marriage and which has only your name on its title (or your name and a third-party’s name) is considered separate property.  Similar to converting a gift or an inheritance to marital property, it is possible to convert your separate property to marital property.

An example will demonstrate how this typically happens.  Prior to marriage, you owned a house and your name is the only name on the deed.  Clearly, at the time of marriage, this house is your own separate property.  If, after the marriage, you put your spouse’s name on the deed, then you have converted your separate property to marital property (again, there are some limited exceptions to this rule).

Another common example of how separate property can be converted to marital property is a bank account.  If you had your own bank account prior to marriage and never put your spouse’s name on that account and, after marriage, never put any additional money into that account (except for gifts and inheritances), then that bank account and the money in it would be considered separate property.  Yet, if after marriage, you put your spouse’s name on the account or you put your income or other funds into that account, then either the entire account will now be considered marital property or part of it will be considered marital property.

It is important to remember that the presumption — that is the default – is that at the time of your divorce, all assets are considered marital property.  It is up to you to prove that the asset is your separate property.  You most likely will need documentation to prove this.  This is why it is important to keep all records of any asset that you want to keep as your separate property.

In almost every case, you have to pay child support until the child turns 21 years of age.  There are some limited exceptions, listed below.

By Agreement:

You can volunteer to pay child support after the child turns 21 years of age.  Some, divorce agreements will state that child support is to be paid until the child turns 22 or 23 years of age, provided the child is in college.

However, just because the child is enrolled in college, you do not have to agree to pay child support after the child turns 21 years of age.

Child gets married:

If the child gets married, before he or she turns 21 years of age, then in most cases, you will no longer have to pay child support.  However, if the child gets divorced or is no longer married and is still under 21 years of age, then your child support obligation will be reinstated.

Entry into Armed Forces:

If the child enters any of the armed forces of the United States (Army, Navy, Marines, Air Force, Space Force and Coast Guard), then you can stop paying child support.  If the child is discharged or no longer in the armed forces and is still under 21 years of age, then your child support obligation will be reinstated.

Entry into the U.S. Peace Corps:

If the child enters the United States Peace Corps, then you can stop paying child support.  If the child is discharged or no longer in the Peace Corps and is still under 21 years of age, then your child support obligation will be reinstated.

Living away from both parents and financially independent of both parents: 

If the child resides away from both parents and can demonstrate that they are financially independent from both parents, then you can ask the Court to stop your child support obligation.  The Court has to determine that the child is actually financially independent before you can stop paying child support.

Since 2016, the Courts are required to first use a formula as a “guideline” to determine what should the amount of spousal support (also known as spousal maintenance) be in New York State.  The formula can be found on the New York State Courts website at this link:

https://www.nycourts.gov/LegacyPDFS/divorce/forms_instructions/NoticeGuidelineMaintenance.pdf

I also list the formula at the end of this FAQ.

There are two different formulas to consider.  One formula is where the person paying spousal support (called the payor) is also paying child support.  The other formula is where there is no child support to be paid or the payor is the person receiving child support.

To use the formula, you need to know what is your Child Support Standards Act income.  This income number is not your gross income and it is not your net income.  For most people the way to calculate your Child Support Standards Act income is to first start with your gross income and from that number subtract the amount of money you pay to Social Security and Medicare.  However, there can be additional income to consider, such as fringe benefits or money given to you by relatives.  The best way to determine what your actual Child Support Standards Act income is, is to consult with an attorney.

Before you plug in your Child Support Standards Act income into the formula, you have to determine if your income is over the cap.  As of 2020, the cap is $192,000.00.  Every two years, the cap is increased by the rate of inflation.  If your income is above the cap, you would just put in $192,000.00.

You also have to make sure that you use the right formula.  The result of the formula will give you the amount of guideline maintenance.  The Court is allowed to deviate from the guideline amount.  The Court can deviate both upwards and downwards.  This is where a good attorney earns their stripes.  An attorney can present reasons why the guideline maintenance is either too little or too much.

The following is a table that shows the result of the formula for different income scenarios.  The table assumes that Spouse 2 is always receiving maintenance

 

Spouse 1 Income Spouse 2 Income Spouse 2 doesn’t pay child support Spouse 2 pays child support or there are no children
$80,000 $40,000 $6,000 / year $8,000/year
$100,000 $40,000 $10,000 / year $16,000/year
$120,000 $40,000 $14,000 / year $24,000/year
$150,000 $40,000 $20,000/year $36,000/year
$80,000 $60,000 No Maintenance No Maintenance
$100,000 $60,000 $4,000/year $4,000/year
$120,000 $60,000 $9,000/year $12,000/year
$150,000 $60,000 $15,000/year $24,000/year

As you can see, there is usually a large difference in whether or not you pay child support compared to not paying child support.

Here is the maintenance formula:

If you are paying child support and will also be paying maintenance, use this formula:

Line 1: Multiply your income by 20%

Line 2: Multiply the other spouse’s income by 25%

Result 1 = Subtract Line 2 from Line 1

Line 3: Compute 40% of the combined income

Result 2 = Line 3 – the other spouse’s income

The lower of Result 1 or Result 2 is the guideline amount of maintenance.

NOTE: if the guideline amount of maintenance is less than or equal to zero, then the amount is zero.

If you are not paying child support or there are no children, use this formula

Line 1: Multiply your income by 30%

Line 2: Multiply the other spouse’s income by 20%

Result 1 = Subtract Line 2 from Line 1

Line 3: Compute 40% of the combined income

Result 2 = Line 3 – the other spouse’s income

The lower of Result 1 or Result 2 is the guideline amount of maintenance.

NOTE: if the guideline amount of maintenance is less than or equal to zero, then the amount is zero.

There is no “right” answer for how long you have to pay spousal support. In determining the amount of time that you have to pay spousal support, the court will consider the following:

  • If your marriage was less than 15 years, then it may consider the duration to be 15% to 30% of the length of marriage. So, as an example, if your marriage was 10 years, then the duration of spousal support could be from 1.5 years (i.e. 1 year and 6 months) to 3 years.
  • If your marriage was more than 15 years, but, less than 20 years, then it may consider the duration to be 30% to 40% of the length of marriage. So, as an example, if your marriage was 18 years, then the duration of spousal support could be from 5.4 years (5 years and 5 months) to7.2 years (7 years and 2 months)
  • If your marriage was more than 20 years, then it may consider the duration to be 35% to 40% of the length of marriage. So, as an example, if your marriage was 25 years, then the duration of spousal support could be from 8.75 years (8 years and 9 months) to 10 years.

It is important to note that the Court has some discretion on how long spousal support should last.  In addition to the above, the Court will consider many other factors in determining how long spousal support should be.  The most important of those factors are:

  • The age and health of the parties
  • The present or future earning capacity of the parties, including a history of limited participation in the workforce;
  • The need of one party to incur education or training expenses;
  • The wasteful dissipation of marital property, including transfers or encumbrances made in contemplation of a matrimonial action without fair consideration;
  • Acts by one party against another that have inhibited or continue to inhibit a party’s earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law;
  • The availability and cost of medical insurance for the parties;
  • The care of children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws provided during the marriage that inhibits a party’s earning capacity;
  • The tax consequences to each party;
  • The standard of living of the parties established during the marriage;
  • The reduced or lost earning capacity of the payee as a result of having forgone or delayed education, training, employment or career opportunities during the marriage;
  • The equitable distribution of marital property and the income or imputed income on the assets so distributed;
  • The contributions and services of the payee as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party;

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