New York Divorce Involves Key Legal Steps: Understanding grounds for divorce, financial disclosures, custody arrangements, and court filings is essential for navigating the process effectively.
Equitable Distribution, Not Equal: New York follows equitable distribution rules, meaning marital property is divided fairly—but not necessarily 50/50—based on various legal factors.
Legal Guidance is Crucial: Divorce involves complex emotional and legal decisions; working with an experienced attorney helps protect your rights and avoid costly mistakes.
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NEW YORK IS A NO-FAULT DIVORCE STATE
I’m going to provide you with the basics of New York divorce. When people call me for the free consultation, many of them don’t even know where to start. The process can be confusing, and let’s be honest, emotionally draining. What can help you is some basic understanding of the process. This webpage is kind of the central jumping point for all basic articles and posts about the process.
This start at the begining. You don’t need to prove fault to get a divorce in New York. Effective October 12, 2010, fault is no longer needed to obtain a divorce in New York. New York will allow a divorce if the relations between the parties have broken down for at least six months or month. This does not mean you get a “quickie” divorce. No Fault means you don’t have to prove marital fault, but the other issues regarding children and property will remain.
I get that divorce is emotional and that many people just want to tell their story. But, divorce law does not address emotions. It addresses ending the marriage, splitting the assets and addressing the children issues.
Before 2010, we need to actually prove one of the grounds below:
1. One spouse has physically abandoned the martial home for at least one year.
2. One spouse has refused sexual relations for a period of one year, as known as constructive abandonment.
3. One spouse’s conduct is so cruel and inhuman that it is physically, or psychologically unsafe for the other spouse to remain in the home.
4. Imprisonment for a period of more than five years.
5. Insanity.
This is why “No Fault” is a great tool. Before “No Fault” we had to prove marital fault, whehter it be adultery, abandonment or cruel conduct. Unfortunately, if you couldn’t prove one of those, the Judge would not issue a divorce. And it did happen.
I’ve had a number of people who don’t want a No Fault divorce, they want to get a divorce on the grounds of Adultery. The law has made it pretty much impossible to prove adultery. You will need either a video of the act, or a DNA test for a child. Other than than, adultery is pretty tough to prove.
There a lot of myths about adultery, and of course the biggest is that you will get custody if your spouse comitted it. The second biggest myth is that you get the house.
You Don’t Automatically Get Custody If Your Spouse Committed Adultery.
Here’s a pretty comprehension article on custody standards in New York. I graduated law school in 1986, and when I took divorce law, we were taught that adultery hadn’t been a factor in divorce for years. It was when my grandfather practiced law, and he died in 1966.
At some point, adultery was thrown out as a factor. I had a case when the wife threw the husband out, moved the boyfriend in and then applied for spousal support, child support and for him to pay the mortgage while the divorce was pending. The judge granted the application. My client looked me and said, “So, I’m paying for this guy to live in my house, eat my food, and sleep with my wife?”
On the other hand, I had a case where the husband engaged in anonymous sex with anyone, male or female on Craigslist. (BTW, I met Craig at a Veteran’s event. Really nice guy.) The judge gave him supervised visitation.
The difference was in the first case, there was only one paramour. In the second, the husband was sleeze who could have been infected with God knows what filthy dieases. The judge was worried that this conduct was dangerous to the children.
Also, different judges look at things differently. I’ve had some judges take a lax attitude towards the new boyfriend or girlfriend around the children during the divorce, and others who issue specific orders that the new paramour is not allowed around the children under the divorce is complete.
No, You Don’t Get the House If Your Spouse Committed Adultery
Sorry, just because your spouse cheated on you, you don’t get the house. Here’s a detailed article on Adultery and Equitable Distribution.
As I explained in the above section, adultery is not considered as a factor in the divorce or in the division of property… Except. The exception is when your spouse uses marital money on the boyfriend or girlfriend.
For example, I had a case where we discovered that the Husband paid $55,000 for his girlfriend’s engagement ring. The problem was that he hadn’t divorced my client yet. The court clawed back the money and it was property distributed in the divorce.
What is Equitable Distribution?
Equitable Distribution is the law which we use to divide property in a divorce. Here’s in depth article on that topic.
Equitable Distribution is NOT equal distribution. But, in long term marriages the courts will generally divide the assets fifty/fifty.
Also, we don’t care who’s name the property is listed in. If it was bought during the marriage it is more than likely “marital property.”
A house bought during marriage is probaby going to be marital property even if only one spouse’s name is on the deed.
The same goes for retirement assets, like pensions and 401ks. Here’s an article on retirement assets and divorce.
Some parties think that they own an asset because they paid for it. Sorry, but New York Law, all salaries earned during marriage are marital. If a piece of property was bought during the marriage, and with money earned during the marriage, then that property is marital.
Child Custody is Determined As “The Best Interests of the Child”
No, the mother does not automatically get custody. I’ve won custody for dads, and even had cases where the mother has agreed that dad should have custody.
Here’s an article on Child Custody.
In my experience, the parent who tends to be the primary caregiver will get custody. This is regardless of whether that is mom or dad. If both parents work, then it may come down to schedules. First responders generally have rotating schedules. This makes custody and visitation challenging for them. Here’s an article on custody for first responders.
How Much Is Child Support?
In New York, Child Support is based upon math. Here’s an article on Child Support.
The basic law is that child support is a percentage of the income of the non-custodial parent.
One Child : 17%
Two Children 25%
Three Children 31%
Four Children 33%
There is a calculation using both parties income, up to an income cap of $183,000 (that number goes up every couple of years. As of 2025 it is $183,000). Courts can and do go through the cap. I have a client who made a $1,000,000 a year. His wife wanted 31% of $1,000,000. We settled on capped his income at $325,000. In another case, the ex-wife was looking to get 17% of my client’s $225,000 a year salary. But, she could prove why she needed it, so the judge imposed the cap at $183,000.
Child Care and medical expenses as separate from and additional to child support. A non-custodial parent can be required to pay child support, child care, medical insurance and unreimbursed medical expenses.
College is not required but the court can order it to be covered. Here’s an article on that and because I get so many call on it, here’s another.
Finally, Child Support, childcare, college costs and medical costs end at 21 years old. “But, wait” I hear you say, “I’ve a friend who had to pay support until 22.” That’s because he agreed to do that. If you don’t agree to extend paying child support past 21, then no court has the authority to order you to do so. If you agree to extend the time to pay support, then a court can enforce that agreement.
Post-Divorce Spousal Support – Maintenance.
New York does not use the word “alimony”. Alimony was lifetime support by the husband for the wife. We got rid of that over 50 years ago. Instead, we have “maintenance.” This is a short term payment by the higher wager earner to the lower wage earner. It is based upon a mathematical formula. Here’s an article on that.
The bottom line is that there is a formula. It the difference between the two incomes is great, then there is higher likelihood of maintenance. If the spread is small then probably not. If one spouse makes $60,000 and the other $70,000 then there will not be any maintenance. If one spouse makes $40,000 and the other $190,000 then there will be maintenance.
Maintenance is not forever. It is based upon a percentage of the marriage.
Between zero and 15 years of marriage: 15% – 30%
Between 15 and 20 years of marriage: 30% – 40%
More than 20 years of marriage: 35% – 50%
Finally, the statute is gender neutral. That means woman could end up paying maintenance to their ex-husbands. I had one client, a hospital CEO who was outraged to find that she would be paying support to her husband. “He just sat there on the couch doing nothing.”
Frequently Asked Questions: Divorce 101 in New York
1. What are the grounds for divorce in New York?
New York offers both no-fault (irretrievable breakdown of the marriage for at least six months) and fault-based grounds (such as adultery, abandonment, or cruelty). Most cases today proceed under no-fault.
2. How long does a divorce take in New York?
It varies. An uncontested divorce can take a few months, while contested cases involving custody, property, or support disputes can take a year or more, depending on complexity and court scheduling.
3. What is “equitable distribution”?
Equitable distribution means marital property is divided fairly, not necessarily equally. The court considers factors like income, duration of marriage, contributions, and future needs when deciding how to divide assets.
4. What’s considered “marital property”?
Marital property includes most assets acquired by either spouse during the marriage—like homes, pensions, businesses, and bank accounts. Separate property (e.g., gifts, inheritances, or pre-marriage assets) is usually not divided. Title to the martial property plays no role in property division.
5. How is child custody decided?
Custody is based on the best interests of the child, considering factors like parental involvement, stability, health, and the child’s preferences (especially as they get older).
6. Do I need a lawyer for a divorce in New York?
While it’s legally possible to divorce without a lawyer, it’s not recommended—especially if your case involves custody, property, or support. A lawyer ensures your rights are protected and legal procedures are followed.
7. What if my spouse won’t cooperate or sign divorce papers?
You can still proceed. If your spouse refuses to respond after being properly served, the court can grant you a default judgment and move forward without their participation.
8. Do I have to go to court for a divorce?
Not always. If the case is uncontested or settles through negotiation or mediation, you might never see a judge. Contested cases, however, typically require court appearances and possibly a trial.
9. How is spousal support (alimony) determined?
Spousal support is based on statutory formulas and some judicial discretion, considering each spouse’s income, earning capacity, standard of living, and the duration of the marriage.