Frequently Asked Questions
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What is the difference between a divorce and a legal separation?
Divorce is the legal process of terminating a marriage. Once a divorce is finalized, the couple will no longer be considered married in the eyes of the law. Furthermore, once a couple is divorced, they are no longer considered to be in the family, and henceforth ineligible to receive benefits from one another including health insurance. Once a couple is divorced, they must reapply for a marriage license if they wish to rekindle their relationship.
Legal separations are not as absolute as divorces because they do not terminate the marriage. During a legal separation, couples separate for a specified amount of time, but have the option to get back together without having to reapply for a marriage license. If a couple legally separates for a set period of time, and then decides to still go through with the divorce, it is then that they file a petition to begin the divorce process.
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How are marital and separate property different?
Any property, asset, or financial account that you first gained or contributed to while married is considered a piece of marital property. The same is true of any such types of property gained or improved by your spouse during your marriage. New York’s equitable distribution laws apply to marital property during a divorce, which means it will be subject to division based on what is fair, not equal.
On the other hand, separate property is a piece of property, asset, or financial account that you or your spouse controlled and owned alone before you were married or after your divorce was finalized. Unlike marital property, separate property is exempt from New York’s equitable distribution rules. You should be aware that the interest earned on a separate financial asset will be subject to equitable distribution if that interest was accrued while you were married.
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How is property divided?
Because New York is not a "community property" state, all assets, properties, and possession acquired by either spouse during the marriage are subject to equitable distribution. Equitable distribution refers to the process of dividing and splitting marital assets and property.
In order to divide and distribute marital assets and property as fairly and evenly as possible, the Court will consider many factors, such as:
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The length of the marriage
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The amount of property to divide
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The types of assets and properties and how they were acquired
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Each spouse's financial needs
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Each spouse's earning capacity
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Each spouse's age and health
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The presence of children and their ages
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Does New York still require grounds to file for divorce?
No. New York famously held out as the last state in the country to add a no-fault divorce law, which was done in 2010. Beforehand, spouses had to rely on one of seven approved grounds of divorce. Serious issues arise when grounds for divorce are required, such as effectively trapping people in dangerous relationships and encouraging divorcees to make fabrications about their spouse just to file.
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Can only New York residents file for divorce?
New York divorce courts will only hear divorce cases that have been filed by residents who have lived there for a certain amount of time, except in extremely rare circumstances. A residency requirement is not unusual outside of New York, either. It effectively acts as the only “divorce requirement” today.
New York residency requirements for divorce are:
- Marriage was officiated in New York.
- At least one of the divorcees must have lived in New York for one year or longer.
- Married couple must have lived together in New York for one year or longer.
- At least one of the divorcees must have lived in New York for two years or longer if they were not married in New York.
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Does New York offer common law marriages?
Common law marriages are not valid in the state of New York. However, New York will recognize common law marriages that are valid in another state.
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How does New York law outline and define child support?
New York divorce courts require a noncustodial parent of divorce to pay child support to the custodial parent in essentially all cases. To calculate the child support amount paid, the yearly average incomes of both parents are added together and then multiplied by a certain percentage, which is chosen based on how many children are covered in the child support order. Only dependent or minor children will be considered during a typical child support calculation.
New York uses the following percentage-to-child list:
- One child: 17%
- Two children: 25%
For example, if your combined annual income with your spouse is $100,000 and you have two children together, then the yearly child support amount would be set at $25,000. This amount would then be adjusted based on the noncustodial parent’s contributing income percentage.
- Three children: 29%
- Four children: 31%
- Five or more children: 35%
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How long are people required to pay child support for? In New York, a parent is only required to pay child support until the child reaches the age of 21 unless exigent circumstances exist and support can be extended to age 26. In many cases, parents with children in college will continue to pay child support until the age of 22. In addition, a parent can choose to continue paying child support past the age of 21 if they wish to do so but there is no legal requirement to do so unless there are exigent circumstances.
The ongoing costs for a special needs child can be exorbitant and when you factor in an increased likelihood of divorce and two households to be supported, the financial pressures, let alone the emotional ones, are trying. Until just this year, child support for all children in New York ended at age 21, regardless of whether a child would actually be able to be self-supporting at age 21. Now, a new law passed unanimously by the New York legislature, permits a custodial parent to pursue child support for adult children with disabilities above the age of 21 and such support will continue until age 26. New York is now the 41st state to extend support for such children.
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What does the law do?
The law amends the domestic relations law and the family court act to allow custodial parents or caregivers of children with “developmental disabilities” to petition a Court to receive support payments until the child is age 26. See Domestic Relations Law §240-d; Family Court Act § 413-b.
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Who does the law apply to?
The person who may file the petition is the custodial parent or caregiver of a “developmentally disabled” child and that child is “principally dependent” on the petitioner and resides with the petitioner.
The child must be diagnosed by a medical professional with a developmental disability. A developmental disability is as defined by the Mental Health Law, which includes, but is not limited to, cognitive, developmental and physical disabilities. The disability must: (1) have originated before the child became 22 years old; (2) have continued or can be expected to continue indefinitely; and (3) constitutes a substantial handicap to the child’s ability to function normally in society. See Mental Health Law §1.03 (22).
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What will a court consider in making this support award?
The Court has the discretion to make an award of support for the adult child based on the following:
(1) Finding the child has a developmental disability as discussed above;
(2) A calculation according to the mandatory formula based on parental income (aka the “Child Support Standards Act”) and other current child support provisions under New York law; and
(3) Whether the financial responsibility of caring for the child has been “unreasonably placed' on one parent when determining the support obligation.
What “unreasonably placed” financial responsibility looks like will be at the court’s discretion as the new law does not give any guidance or definition.
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What if there is already a support order in place?
The law allows courts to modify prior child support orders. This means parents can return to court and petition to modify their current child support orders if the child is not older than age 26.
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How will these support payments be made?
The new law allows the court to order payments in two ways. The first is for the payments to be made directly to the caregiver/petitioner. The second option is for the court to direct payments be made to a trustee of an “exception trust” (as defined by the Social Services Law and the Estates, Powers and Trusts Laws) if the court finds it will “assist in maximizing assistance to the child,” which is again up to the court’s discretion.
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What is the benefit of signing a prenuptial or postnuptial agreement?
Prenuptial and postnuptial agreements are written documents that clearly define how each spouse's separate assets and property will be divided and allocated if the marriage ends in divorce or death.
There are many advantages to entering into a pre or postnuptial agreement. Prenuptial and postnuptial agreements protect:
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Each spouse's separate property, possessions, and assets
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The best interest and safety of the family
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Estate rights for children
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Financial security
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Heirlooms and inheritances
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Pension, retirement funds, stocks, bonds, trusts
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Money or interest earned from independent or family owned businesses
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Money earned from an enhanced education or degree
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