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Frequently Asked Divorce Questions
The timeline for divorce in New York varies significantly based on the complexity of your case. Uncontested divorces where both parties agree on all terms can typically be finalized in 3-6 months. Contested divorces that require negotiation or court intervention may take 12-18 months or longer, depending on the issues involved such as child custody, property division, and spousal support disputes.
New York allows both no-fault and fault-based divorce. The most common is no-fault divorce based on 'irretrievable breakdown of marriage' for at least 6 months. Fault-based grounds include adultery, abandonment for one year, imprisonment for three or more years, and cruel and inhuman treatment. Most divorces proceed under no-fault grounds as they're typically faster and less contentious.
No, you don't need to be physically separated before filing for divorce in New York. However, if you're filing for no-fault divorce based on irretrievable breakdown, you'll need to state that the marriage has been broken down for at least 6 months. You can live in the same house during divorce proceedings, though many couples choose to live separately.
New York follows 'equitable distribution,' meaning marital property is divided fairly but not necessarily equally. The court considers factors like length of marriage, each spouse's income and earning capacity, age and health, contributions to the marriage (including homemaking), and future financial needs. Separate property (owned before marriage or received as gifts/inheritance) typically remains with the original owner.
An uncontested divorce occurs when both spouses agree on all major issues including property division, child custody, support, and alimony. This process is faster, less expensive, and less stressful. A contested divorce involves disagreement on one or more issues, requiring negotiation, mediation, or court intervention to resolve disputes. Even contested divorces can become uncontested if agreements are reached during the process.
Child Custody & Support
New York courts make custody decisions based on the 'best interests of the child' standard. Factors include each parent's ability to provide stability, the child's relationship with each parent, any history of domestic violence, the child's preferences (if age-appropriate), and each parent's willingness to facilitate the other's relationship with the child. There's no automatic preference for mothers or fathers.
Legal custody refers to the right to make important decisions about your child's life, including education, healthcare, and religious upbringing. Physical custody refers to where the child lives day-to-day. You can have joint legal custody (both parents make decisions together) while one parent has primary physical custody, or various other combinations based on what's best for your specific situation.
New York uses the Child Support Standards Act (CSSA) to calculate support. The basic formula considers both parents' combined income up to $163,000 (as of 2023) and applies percentages: 17% for one child, 25% for two children, 29% for three, 31% for four, and 35% for five or more. The non-custodial parent typically pays their proportional share. Additional expenses like healthcare, childcare, and education may be added.
Yes, custody and support orders can be modified when there's a substantial change in circumstances. For custody, this might include relocation, changes in work schedules, or concerns about the child's welfare. Support modifications may be warranted due to significant income changes, job loss, or changes in the child's needs. You'll need to petition the court and demonstrate the changed circumstances.
Financial Matters
New York courts consider multiple factors when determining spousal support: length of marriage, each spouse's income and earning capacity, age and health, standard of living during marriage, contributions to the marriage (including career sacrifices), and future financial needs. There are guidelines for temporary support during divorce proceedings, but permanent support is determined based on the specific circumstances of each case.
Like assets, debts are subject to equitable distribution in New York. Marital debt (incurred during marriage for marital purposes) is typically divided between spouses. This includes mortgages, credit cards used for family expenses, and loans for marital property. Separate debt (incurred before marriage or for non-marital purposes) usually remains with the spouse who incurred it, though there can be exceptions.
Retirement accounts like 401(k)s, pensions, and IRAs are considered marital property if contributed to during marriage. The portion earned during marriage is subject to equitable distribution. Division typically requires a Qualified Domestic Relations Order (QDRO) to avoid tax penalties. The timing and method of division can vary - sometimes accounts are split immediately, other times the non-employee spouse receives benefits when the employee retires.
Yes, custody and support orders can be modified when there's a substantial change in circumstances. For custody, this might include relocation, changes in work schedules, or concerns about the child's welfare. Support modifications may be warranted due to significant income changes, job loss, or changes in the child's needs. You'll need to petition the court and demonstrate the changed circumstances.
Divorce costs vary widely based on complexity and whether it's contested. Uncontested divorces may cost $3,000-$7,000 including attorney fees and court costs. Contested divorces can range from $10,000-$50,000 or more per spouse, depending on the issues involved and length of proceedings. Additional costs may include appraisals, financial experts, child custody evaluators, and mediation fees.
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