Welcome to the Law Office of Bryan J. Hutchinson, PLLC
New York has passed a No Fault divorce law which took effect on October 12, 2010. Now you can get a divorce without proving your spouse was a fault for the break-up of the marriage. All the law requires is that a party states under oath that the relationship between the Plaintiff and Defendant has broken down irretrievably for a period of at least six months. The new ground for divorce is codified under New York Domestic Relations Law Section 170(7). Contact us immediately to find out how you can take advantage of this new law and get a fresh start on life.
Welcome to the Law Office of Bryan J. Hutchinson, PLLC. Going through a divorce is never easy for either party. It is often a heart wrenching and painfully experience. Oftentimes the divorce of parents is especially hard for children. Our goal is to use our more than ten years of experience to counsel our clients to avoid mistakes and traps and achieve success on this new path in life. That is why we created this informative website to give you an insight into the various aspects of New York divorce law. We believe that an informed client is the best client to represent. Fill out our divorce evaluation form for a confidential consultation.
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What are the New York grounds for divorce?
There are seven grounds for divorce in New York. The grounds for divorce are:
1) Cruel and Inhuman Treatment -- New York Domestic Relations Law section 170(1);
2) Abandonment -- New York Domestic Relations Law section 170(2);
3) Imprisonment -- New York Domestic Relations Law section 170(3);
4) Adultery -- New York Domestic Relations Law section 170(4);
5) Living Apart Pursuant to Separation Decree -- New York Domestic Relations Law section 170(5); and
6) Living Apart Pursuant to Separation Agreement -- New York Domestic Relations Law section 170(6).
7) Irretrievable Breakdown of the Relationship (DRL Sec. 170(7)): The relationship between the Plaintiff and Defendant has broken down irretrievably for a period of at least six months.
How do I get a New York divorce on the grounds of abandonment?
a. Requirements for proving abandonment under New York Domestic Relations Law Section 170(2)
The abandonment of the plaintiff by the defendant for a period of one or more years.
Abandonment may occur in any one of the three way
(1) the defendant spouse left the marital home; or
(2) the defendant spouse locked the plaintiff out of the marital residence; or
(3) constructive abandonment.
To establish a cause of action for a divorce on the ground of constructive abandonment within the meaning of Domestic Relations Law section 170 (2), the spouse who claims to have been constructively abandoned must prove that the abandoning spouse unjustifiably refused to fulfill the basic obligations arising from the marriage contract and that the abandonment continued for at least one year. The refusal must be unjustified, willful and continued despite repeated requests for continued conjugal relations. See Schine v Schine, 31 NY2d 113 (1972); Del Galdo v De Galdo, 51 AD2d 741, 379(2d Dept 1976). The defendant spouse must not have suffered from an impairment or disability that prevented the defendant from engaging in sexual relations.
b. Defense to a cause of action for abandonment
Constructive abandonment: If the refusal to engage in sexual relation is justified in light of inappropriate conduct by the allegedly abandoned spouse, that spouse has no cause of action for a divorce on the ground of constructive abandonment.
In cases in involving a lock-out or leaving of the marital residence the defendant has a defense if the absence or lock-out was justified or that there is a lack of continuous abandonment. See Schine v Schine, 31 NY2d 113; Del Galdo v De Galdo, 51 AD2d 741. Generally, an un-rescinded and valid separation agreement or a valid separation decree is a defense to cause of action on abandonment. See Butt v Butt, 50 AD2d 584 (2d Dept 1975).
How does a New York separation agreement work?
Requirement for obtaining a divorce based on a Separation Agreement under New York Domestic Relations Law Section 170(6)
The husband and wife must have lived separate and apart pursuant to a written agreement of separation.
The agreement of separation must be subscribed by the parties and acknowledged or proved in the form required to entitle a deed to be recorded. The parties must live separate and apart for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such agreement. Such agreement shall be filed in the office of the clerk of the county wherein either party resides.
In lieu of filing such agreement, either party to such agreement may file a memorandum of such agreement, which memorandum shall be similarly subscribed and acknowledged or proved as was the agreement of separation and shall contain the following information: (a) the names and addresses of each of the parties, (b) the date of marriage of the parties, (c) the date of the agreement of separation and (d) the date of this subscription and acknowledgment or proof of such agreement of separation.
b. Defenses to obtaining divorce based on a separation agreement
Cohabitation after the execution of a written separation agreement is a defense to obtaining a divorce based on the separation agreement.
However, cohabitation of in and of itself is not sufficient to destroy a separation agreement unless there is proof that such cohabitation occurred with intent to reconcile and abandon the separation agreement. See Brody v Brody, 190 AD 806 (1st Dept 1920); Markowitz v Markowitz, 381 NYS2d 676 (1st Dept 1976).
How do I prove cruel and inhuman treatment in a New York Divorce?
a. Requirement for proving cruel and inhuman treatment under New York Domestic Relations Law Section 170(1)
The cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant.
The court generally considers the parties age, the length of the marriage, the scope, degree and effect of the conduct between the parties.
Cruelty made take the form of either verbal or physical abuse. Conduct that has been considered cruel, include but not limited to: locking the spouse out of the marital residence; destroying personal belongings; making embarrassing phone calls to the other spouse?s employer; denigrating spouse in public; flaunting extramarital affair; making false accusation of extramarital affairs; threats of violence; drug addiction and habitual intoxication that make it unsafe for the plaintiff to live with the defendant; etc.
A party seeking divorce on this ground must show serious misconduct, and not mere incompatibility --- a course of conduct by the defendant spouse which is harmful to the physical or mental health of the plaintiff and makes cohabitation unsafe or improper. Further, when the marriage is one of long duration, a high degree of proof of cruel and inhuman treatment is required.
b. Defenses to a cause of action for cruel and inhuman treatment
Defenses to a divorce action upon the grounds of cruel and inhuman treatment include but are not limited to: (1) the five year statute of limitation - the events occurred five years prior to the date of commencement of the action. See Domestic Relations Law section 210.
Under the present divorce statute there is no recriminatory defense in a divorce action based upon cruel and inhuman treatment and the court will probably dismiss any such affirmative defense. See Mante v Mante, 34 AD2d 134(2d Dept 1970). However, defendant may show that misconduct by plaintiff (the lure and attraction of another woman is a classic example) was the cause of his leaving defendant wife rather than the alleged cruel and inhuman treatment of the wife. To that extent the information is material and necessary to the defense of the action. See Walden v Walden, 41 AD2d 664 (2d Dept 1973); C.P.L.R. § 3126.
How do I prove adultery in a New York divorce?
a. Requirements for proving adultery under New York Domestic Relations Law Section 170(4)
Adultery is defined as the commission of an act of sexual or deviate sexual intercourse, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of plaintiff and defendant.
Under New York Penal Law section 255.17, a person is guilty of adultery when he engages in sexual intercourse with another person at a time when he has a living spouse, or the other person has a living spouse. Adultery is classified as a class B misdemeanor.
In order to prove adultery, an affidavit for the plaintiff is not sufficient, because a spouse is not competent to testify as to an adultery committed by the other spouse. See CPLR § 4502(a). However, a spouse is allowed give testimony to prove the marriage, disprove the adultery, or disprove a defense after evidence has been introduced tending to prove such defense.
b. Defenses to a cause of action for adultery
New York Domestic Relations Law Section 171 provides that notwithstanding the fact that a plaintiff may establish adultery, the court will not grant a divorce if any one of the following facts is proved in the divorce action:
1. Where the offense was committed by the procurement or with the connivance of the plaintiff.
2. Where the offense charged has been forgiven by the plaintiff. The forgiveness may be proven, either affirmatively, or by the voluntary cohabitation of the parties with the knowledge of the fact.
3. Where there has been no express forgiveness, and no voluntary cohabitation of the parties, but the action was not commenced within five years after the discovery by the plaintiff of the offense charged.
4. Where the plaintiff has also been guilty of adultery under such circumstances that the defendant would have been entitled, if innocent, to a divorce.
NEW YORK RESIDENCY REQUIREMENT
Do I have to live in New York to file for divorce?
Under New York law an action to annul a marriage, or to declare the nullity of a void marriage, or for divorce or separation may be maintained when one or both of the parties is a resident of the State of New York for a particular period of time as specified by New York Domestic Relations Law section 230.
An action to annul a marriage, or to declare the nullity of a void marriage, or for divorce or separation may be maintained only when one of the following event is satisfied (note you only need to satisfy one):
1. You or your spouse must have been living in New York State for a continuous period of at least two years immediately before the date you start your divorce action; O R
2. You or your spouse must have been living in New York State on the date you start your divorce action and for a continuous period of at least one year immediately before the date you start the divorce action, and at least one of the following must also be true:
a) Your marriage ceremony was performed in New York State; O R
b) You lived in New York State with your spouse as married persons; O R
3. You or your spouse must have been living in New York State for a continuous period of at least one year immediately before the date you start your divorce action and your grounds for divorce must have happened in New York State. ("Grounds" means a legal reason for the divorce); O R
4. You and your spouse must be residents of New York State (no matter how long) on the date you start your divorce action, and your grounds for divorce must have happened in New York State. ("Grounds" means a legal reason for the divorce)
CHILD CUSTODY AND VISITATION
How to win your New York child custody or visitation case?
First, you must first file a Petition with the Family Court or file a Summons with Notice or a Summons and Compliant for divorce in the Supreme Court. Your spouse must be served with the Petition or Summons with Notice or a Summons and Compliant.
Second, you must prove to the court at a hearing or trial that it is in the best interest of the child that you become the custodial parent or is granted visitation. The court essentially looks at what is in the best interest of the child based on the totality of the circumstance. Some of the factors that court look at include but not limited to:
- ability of each parent to provide for the emotional and intellectual development of the child, (Sandman v Sandman, 64 AD2d 698);
- the desire of the child, if age appropriate, child?s desire is not determinative (Ebert v Ebert, 56 NY2d 167 (1976); Obey v Degling,37 NY2d 768 (1975);
- stability and companionship of siblings (Friedwitzer v Friedwitzer, 55 NY2d 89 (1982);
- deterring self-help through abduction (Friedwitzer v Friedwitzer, 55 NY2d 89 (1982);
- the atmosphere of the home (Saunders v Saunders, 60 AD2d 701 (3d Dept 1977);
- the morality of the parents (Saunders v Saunders, 60 AD2d 701 (3d Dept 1977); and
- the prospective educational probabilities(Saunders v Saunders, 60 AD2d 701 (3d Dept 1977).
When is a custodial parent allowed to relocate with a child?
Cases in which a custodial parent's desire to relocate conflicts with the right of a noncustodial parent to form a parent child relationship are complex issues requiring a balancing of many factors. There are no fast and easy rule when it come to relocation and New York judges or hearing examiners consider relocation on a case by case basis. In making a determination of whether to modify a custody arrangement the court must examine what arrangement would be in the child?s best interest. See Friederwitzer v Friederwitzer, 55 NY2d 89, 93, (1982); Eschbach v Eschbach, 56 NY2d 167(1982).
In Tropea v Tropea, 87 NY2d 727(1996), the New York State Court of Appeals analyzed some of the factors that Courts in New York should consider in deciding a custodial parents request for relocation. The court emphasized that, the impact of the move on the relationship between the child and the noncustodial parent will remain a central concern.
These factors include, but are certainly not limited to:
a) Each parent's reasons for seeking or opposing the move;
b) The quality of the relationships between the child and the custodial and noncustodial parents;
c) The impact of the move on the quantity and quality of the child's future contact with the noncustodial parent;
d) The degree to which the custodial parent's and child's life may be enhanced economically, emotionally and educationally by the move;
e) The effect that the move may have on any extended family relationships; and
f) The feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements.
Where the custodial parent's reasons for moving are deemed valid and sound, the court in a proper case might consider the possibility and feasibility of a parallel move by an involved and committed noncustodial parent as an alternative to restricting a custodial parent's mobility.
Alternatively, where a child's ties to the noncustodial parent and to the community are so strong as to make a long-distance move undesirable, the availability of a transfer of custody as a realistic alternative to forcing the custodial parent to remain may have a significant impact on the outcome.
In sum, based on the totality of the circumstances and all of the proof, the court will determine whether the custodial parent has established by a preponderance of the evidence that a proposed relocation would serve the child's best interests.
What is a law guardian or attorney for a child in New York?
A law guardian is an attorney appointed by the court to look out for the best interest of the child. Family Court Act section 249 authorizes the Family Court to appoint a law guardian. The Supreme Court is also authorized to appoint a law guardian pursuant to 22 NYCRR Section 202.16(f).
Who pays for the law guardian in a New York child custody or divorce case?
Depending on the respective parties income the cost for the law guardian may be paid for by the 18B assigned counsel panel or by the parties.
How does a New York court calculate child support?
New York child support is based upon a percentage of the parental income depending on the number of children pursuant to the Child Support Standards Act.
There are two components to child support: (1) basic child support and (2) mandatory "add-ons".
First, to calculate basic child support the court must determines each parent?s net income. To arrive at net income the court minus from gross income the following deductions:
- NYC Income tax;
- Yonkers Income tax;
- Spousal support actually paid; and
- Child support actually paid for other children.
Second, the court combines the parties? net income together and multiplies it by the child support percentage that corresponds to the number of children:
- 17% for one child;
- 25% for two children;
- 27% for three children;
- 31 % for four children; and
- 35 % for five or more children.
The resulting number is then divided based on the proportion of each parent?s net income to the combined parental income.
On combined parental income over $130,000 the court may deviate from the presumptive amount of basic child support if it finds that applying the guidelines would result in an unjust or inappropriate amount and must cite one of the ten statutory factors.
In addition, to the basic child support a noncustodial parent may be liable for "add-ons" such as medical expenses, child care expenses or education expenses.
SPOUSAL MAINTENANCE, A/K/A ALIMONY OR SPOUSAL SUPPORT
How to get alimony or spousal support?
In New York alimony or spousal support is referred to a spousal maintenance. You can file a petition in the Family Court for spousal support. Or you can request spousal maintenance as a part of your relief if you filed a divorce action in Supreme Court.
New York Equitable Distribution Law provide for maintenance and temporary maintenance of a spouse. See New York Domestic Relations Law section 236 Part B(2).
In any action or proceeding brought (1) to annul a marriage or declare the nullity of a void marriage, or (2) for a separation, or (3) for a divorce, the court may direct either spouse to provide suitably for the support of the other as, in the court's discretion, justice requires, having regard to the length of time of the marriage, the ability of each spouse to be self supporting, the circumstances of the case and of the respective parties.
The court may require the payment of a sum or sums of money either directly to either spouse or to third persons on behalf of the spouse.
Payment is generally effective as of the date of the application for maintenance. The court may direct that any retroactive amount of alimony due shall be paid in one sum or periodic sums. The court may order maintenance payment despite the fact that the parties continue to reside in the same house and despite misconduct of the spouse seeking maintenance, unless such misconduct would itself constitute grounds for separation or divorce.
What factors does the court consider in granting spousal maintenance?
In determining the amount and duration of maintenance the New York court must consider the following factors:
(1) the income and property of the respective parties including marital property distributed pursuant to subdivision five of this part;
(2) the duration of the marriage and the age and health of both parties;
(3) the present and future earning capacity of both parties;
(4) the ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary to become self-supporting;
(5) reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage;
(6) the presence of children of the marriage in the respective homes of the parties;
(7) the tax consequences to each party;
(8) contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
(9) the wasteful dissipation of marital property by either spouse;
(10) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; and
(11) any other factor which the court shall expressly find to be just and proper.
What date does my spousal support or maintenance payment starts after I file my family court petition or action for divorce?
The payment of spousal maintenance is generally effective as of the date of the application for maintenance. The court may direct that any retroactive amount of maintenance due shall be paid in one sum or periodic sums.
Can I get spousal support or maintenance even though I live in the same household with my spouse?
The court can order spousal maintenance payment despite the fact that the parties continue to reside in the same house and despite misconduct of the spouse seeking maintenance, unless such misconduct would itself constitute grounds for separation or divorce
How does New York define marital property?
New York Domestic Relations Law section 236B(1)(c) defines marital property as all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held, except as otherwise provided in agreement pursuant to subdivision three of this part. Marital property shall not include separate property.
What is separate property?
New York Domestic Relations Law section 236B(1)(d) defines separate property as
"d. The term separate property shall mean:
(1) property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse;
(2) compensation for personal injuries;
(3) property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse;
(4) property described as separate property by written agreement of the parties pursuant to subdivision three of this part."
What is equitable distribution of property?
Domestic Relation Law section 236B(5)(d) provides that in determining an equitable disposition of property under paragraph c, the court shall consider:
(1) the income and property of each party at the time of marriage, and at the time of the commencement of the action;
(2) the duration of the marriage and the age and health of both parties;
(3) the need of a custodial parent to occupy or own the marital residence and to use or own its household effects;
(4) the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution;
(5) any award of maintenance under subdivision six of this part;
(6) any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
(7) the liquid or non-liquid character of all marital property;
(8) the probable future financial circumstances of each party;
(9) the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party;
(10) the tax consequences to each party;
(11) the wasteful dissipation of assets by either spouse;
(12) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
(13) any other factor which the court shall expressly find to be just and proper.