Common Questions Regarding Divorce in New York State

Quick-links to the FAQs:

• How do they calculate child support in NY?
• What are grounds for divorce in NY?
• What are the types of divorce in NY?
• What are the methods for divorcing in NY?
• What’s the difference between divorce mediation and collaborative divorce?
• How much does it cost to divorce in NY?
• How to file for divorce in NY
• What are steps to take to prepare for divorce?
• What is the difference between spousal support, maintenance, and alimony?
• What are joint legal custody rights?
• How long does it take?

How do they calculate child support in NY?

Child support in New York is calculated based on a combined parental income formula, with a minimum percentage depending on the number of children. The basic support covers everyday living expenses. There are also mandatory add-ons for childcare (if a parent is working) and medical expenses, i.e., premiums, co-pays, etc.

Discretionary expenses like college and extracurricular activities are usually split through agreement between parents. Child support typically lasts until a child is 21 (or emancipation through marriage, full-time job, etc.) and can be modified if there’s a substantial change in income (over 15%) or circumstances.

For a more in-depth explanation of child support in NY, click/tap this link or the image, above, to access a video presentation by Melissa Goodstein titled “NY Child Support Demystified – Unpacking Child Support in New York State” along with the full transcript.

What are grounds for divorce in NY?

Legal grounds for divorce in New York State are as follows.

• No-fault Divorce – New York became a “no-fault” divorce state in 2010 meaning that if there has been an irretrievable breakdown in the relationship for a period of a least 6 months, and all economic issues including debt and marital property division, spousal support and if there are unemancipated children of the marriage, all issues relative to their custody and support have been resolved or settled and a final agreement has been reached, an action for divorce can then move forward. (For more, watch Melissa Goodstein’s video on The Importance of the NY No Fault Ground for Divorce.)
• Cruel and Inhuman Treatment – The cruel and inhuman treatment must have happened in the last 5 years and must be proven by specific acts of cruelty.
• Abandonment – The spouse must have abandoned the plaintiff for 1 year or more.
• Imprisonment – The spouse must have been incarcerated after the marriage began and sentenced for 3 or more consecutive years. The plaintiff can use this ground for up to 5 years after the spouse was released from prison.
• Adultery – The plaintiff must be able to provide irrefutable evidence that the spouse committed adultery which can sometimes be difficult.
• Divorce After a Legal Separation Agreement – The plaintiff and the spouse sign a legally valid separation agreement and live apart for 1 year.
• Divorce after a Judgment of Separation (“Conversion”): A Supreme Court draws up a judgment of separation and a married couple live separate and apart for one year. This ground is not commonly used.

What are the types of divorce in NY?

There are two basic types of divorce: contested and uncontested.

Contested divorce – A contested divorce is one in which the spouses do not agree on the terms of the divorce, up to and including the divorce itself. This includes disagreements regarding issues such as property division, financial support including spousal and child support, and child custody including time sharing or access and decision making. These disagreements can result in the need for court intervention to resolve the disputed issues and finalize the divorce. However, court intervention or litigation can often be avoided through alternative methods such as mediation and collaborative divorce which are explained in the next FAQ.

Uncontested divorce – An uncontested divorce is one in which the spouses agree on all issues including property division, financial support, and child custody. This type of divorce is usually quicker and less expensive than a contested divorce while minimizing the emotional strain on all parties involved. An uncontested divorce can often be achieved through alternative divorce methods such as mediation and collaborative divorce which are explained in the next FAQ.

Please note, the above types of divorce should not to be confused with methods for divorcing which are explained in the next FAQ.

What are the methods for divorcing in NY?

There are several methods or processes for divorcing in NY. The method utilized will depend on the level of cooperation between the spouses, the complexity of the issues involved, and personal preferences. Here are the more common methods of divorcing in New York.

1. Mediation – Mediation involves a neutral third party, the mediator, who helps facilitate discussions between spouses to reach a mutually acceptable agreement. The mediator does not make decisions but, rather, facilitates communication and problem-solving. Consulting or Review Counsel may be retained by each spouse during the process to advise and to review any agreement reached in mediation. Mediation may be a less expensive process as a couple primarily works with one mediator with the costs shared in some manner between the spouses while retaining counsel on a limited basis. Mediation is a less adversarial approach compared to a traditional divorce.
2. Collaborative Divorce – In a collaborative divorce, a couple works with a Collaborative Professional team to reach an agreement tailored to the needs and interests of their family. Each spouse hires an collaboratively trained attorney with an emphasis on cooperative and respectful negotiations rather than adversarial based litigation. The spouses and their attorneys work together with a team of neutral professionals including a financial neutral and a mental health professional to reach workable solutions for their family. If an agreement is not reached, the collaborative attorneys must withdraw, and new attorneys must be retained for litigation.
3. Litigation – Divorce litigation is the legal process of resolving marital disputes through the court system. Each spouse is represented by an attorney who presents their case in front of a judge to resolve issues like property division, financial support, and custody, if children are involved. Litigation involves formal legal procedures and court hearings generally resulting in a longer, more expensive process. It can often be a more contentious and emotionally taxing approach to divorce. Litigation is necessary in cases of domestic violence, unwillingness to disclose assets/debts or income, lack of transparency and an overall inability to reach agreement. In New York State, alternatives to divorce litigation include less contentious methods such as mediation and collaborative divorce.
4. Arbitration – Arbitration involves hiring a neutral third party, the arbitrator, to make decisions on disputed issues. The process is less formal than a court trial, and the arbitrator’s decisions are usually binding. It provides a more private and potentially faster resolution than going to court.

What’s the difference between divorce mediation and collaborative divorce?

The above video provides an understanding of the key differences between divorce mediation and collaborative divorce.

How much does it cost to divorce in NY?

The cost of a divorce in NY can vary greatly depending on the type of divorce, the method of divorce, and the complexity of the issues. For example, on the low end, an uncontested divorce can cost around $5,000 while the overall cost of a contested divorce can start at $25,000 for each spouse and can quickly escalate from there depending on the level of court intervention.

Factors that affect the cost of a divorce:

• Contested vs. Uncontested – The most significant factor related to cost is whether the parties can agree on the terms of a divorce or if disputes need to be resolved through mediation, collaboration, or litigation.
• Complexity of the issues – For example, the amount of assets to be divided, child custody determinations, and financial support issues can increase cost. More complex divorces may require financial experts, appraisers, mental health professionals, child advocacy specialists, or other specialists.
• Attorney fees – Attorneys typically bill by the hour and rates can range from $300 to $1,000 per hour and beyond in the NY Metro area.
• Court fees – Mandatory court filing fees in NY generally range from $385. Some counties impose additional fees including credit card fees and certification fees.

How to file for divorce in NY

The steps for filing for divorce in New York State are as follows.

• Verify that you have a legal “ground” for divorce (See above, What are grounds for divorce in NY.)
• Decide on the type of divorce you want to pursue: contested or uncontested. Uncontested divorces are typically quicker and less expensive but both parties must agree on the terms of the divorce in including asset division, spousal maintenance, and child custody and support.
• Gather the necessary documentation.
  1. Identification
  2. Proof of residency
  3. Marriage certificate
  4. Birth certificates of any children
  5. Financial documents (tax returns, bank statements)
• Complete the necessary forms. In New York State, the required forms depend on whether you are filing for an uncontested or contested divorce and whether children are involved. Here are some of the more common forms.
  • Summons with Notice: Informs your spouse of the divorce filing.
  • Summons and Complaint: Provides details about the divorce and grounds for the divorce.
  • Financial Disclosure Affidavit: Outlines your financial situation.
  • Separation Agreement (if applicable): Details agreed-upon terms like property division and child support.

The additional forms that will need to be completed will depend on specific circumstances. Consulting with an attorney is essential for personalized guidance to ensure that the required forms are completed accurately.

• File the divorce papers in person or by mail at the County Clerk’s Office in the county where you reside or where your spouse reside or file the papers electronically using the New York State Courts Electronic Filing System (NYSCEF). Filing fees will need to be paid unless a fee waiver is granted in cases of extreme financial hardship. A summons with notice or summons and complaint needs to be filed and an index number assigned to commence an action for divorce.
• Serve your spouse with the summons with notice bearing the caption Action for Divorce or summons and complaint. If the defendant spouse does not contest the divorce, they will sign an affirmation of defendant if all issues relative to the divorce action have been resolved

What are steps to take to prepare for divorce?

In preparation for a divorce, the following are some of the more important steps one can take.

• Gather important documents – This includes marriage license, birth certificate, tax returns, bank statements, property deeds, and retirement account statements along with any existing prenuptial agreement.
• Start getting your finances in order – Create an inventory of all marital assets and debts. This includes vehicles, bank accounts, retirement accounts, investments, real estate, and any other significant assets. Identify and gather all documents relating to assets and debts that you may claim to be separate property and not marital assets or debts subject to distribution. Make a plan for how you will manage your finances during and after the divorce.
• If children are involved, make arrangements – Plan for child custody options including how you will share time and decision making. Of course, in thinking about the children try to view through their lens and consider their best interests and emotional well-being.
• Consider your living arrangements – Determine where you will live during and after the divorce. If you will be moving out of your marital home, start considering and evaluating housing options.
• Prepare emotionally – Take care of yourself. Divorce is one of the most stressful life events. Watch Melissa Goodstein’s 5-Part Video Series on Preparing for Divorce.
• Consider hiring an attorney – An experienced divorce lawyer can provide guidance and advise you on your legal rights and options for your specific situation.

What are joint legal custody rights?

In New York, there are two parts to custody. One is legal custody and the other is physical custody. A court order, called a custody order, specifies whether one or both parents or someone else is responsible for the child’s care and upbringing.

The person(s) who has legal custody has the right to make decisions regarding major issues such as the child’s religious upbringing and medical care. If a judge gives joint legal custody, both parents make major decisions about the child together. It does not matter which parent the child lives with.

The person(s) awarded physical custody is responsible for the day-to-day care and supervision of the child. This is also referred to as residential custody. If a judge gives joint physical custody, the child lives with each parent for an approximately equal amount of time.

For more details, see the New York State Unified Court System: https://www.nycourts.gov.

How long does it take?

In the above video, Melissa Goodstein answers the question “How long does it take?” relative to the mediation and collaborative divorce options. While it’s a difficult question to answer due to a number of dependencies, she provides example time frames from actual cases. Ultimately, it boils down to the level of engagement, cooperation, and commitment to move forward by both parties.