Divorce forms including New York divorce forms and California divorce forms. Divorce forms including New York divorce forms and California divorce forms.
 

NEW YORK'S HEADQUARTERS FOR DIVORCE FORMS AND INFORMATION

Welcome to Divorce4NewYork, a free source for New York divorce information. The goal of the site is to ensure that all New Yorker's have access to free, accurate and easy-to-understand information regarding New York law of marriage and divorce. As you may have heard, unlike other jurisdictions, New York does not offer no-fault divorces. In each case, you must establish one of the enumerated "grounds" for your divorce. For this and a variety of other reasons, New York divorce law and procedure often seems confusing and intimidating. The information contained in this site is intended to provide you with a clear understanding of your rights, as well as the procedures that apply if you wish to pursue your own divorce. We also offer the forms that you will need if you choose to pursue your own divorce case.

The information provided in this site may be particularly helpful for you if:

  1. you are interested in obtaining an simple, uncontested divorce and are trying to complete the necessary paperwork without hiring an attorney. (an uncontested divorce occurs when: (a) there are no disagreements between you and your spouse over any financial or divorce-related issues (such as custody, support, division of property/debts, etc); and (b) your spouse either agrees to the divorce, or fails to appear in the action.
OR
  1. you need basic background information regarding your rights in connection with marriage and/or divorce.

FREQUENTLY ASKED QUESTIONS REGARDING NEW YORK DIVORCE LAW AND PROCEDURE:

  1. What is meant by the term "uncontested divorce"?
  2. What are the residency requirements for a divorce in New York State?
  3. What if my spouse will not sign the divorce papers?
  4. What are the grounds for a divorce in New York?
  5. Which "ground" is typically used for uncontested divorces in New York?
  6. What are the factors that New York courts consider in determining spousal support/alimony?
  7. Will a prenuptial agreement that contains a waiver of spousal support be enforced in New York?
  8. Will anybody have access to the papers filed in court?
  9. Until What Age Is a Parent Obligated to Support a Child?
  10. What Procedures Can Be Used to Enforce Child Support Obligations?

FREQUENTLY ASKED QUESTIONS REGARDING NEW YORK DIVORCE LAW AND PROCEDURE:

  1. What factors do courts take into account when deciding who gets custody of the children?
  2. When a court awards physical custody to one parent and "visitation at reasonable times and places" to the other, who determines what's reasonable?
  3. If one parent moves out and leaves the kids with the other parent, does it hurt his or her chances of getting custody at a later date?
  4. Are there special issues if a gay or lesbian parent is seeking custody or visitation rights?
  5. Are mothers more likely to be awarded custody over fathers?

ARTICLES, STATUTES, AND RECENT COURT DECISIONS RELATING TO NEW YORK DIVORCE:

  1. Summary of New York Child Support Law, by Marc A. Rapaport, Esq.
  2. Pre-Nuptial Agreements in New York, by Marc A. Rapaport, Esq.
  3. Summary of New York Divorce Laws
  4. Important New York Court of Appeals and Appellate Division Decisions
  5. Parental Alienation
  6. Equitable Distribution in New York
  7. Family Court Order of Protection Information Sheet
  8. New York Name Change Law
  9. Marital Property For Purposes Of Equitable Distribution Under New York Law


What is meant by the term "uncontested divorce"?

Answer: Generally, the term "uncontested divorce" refers to a divorce proceeding in which none of the issues, including the grounds for divorce, child support, title to property, equitable distribution, or maintenance, is in dispute.


What are the residency requirements for a divorce in New York State?

Answer: You may not commence a divorce proceeding in New York State unless you satisfy the residency requirements set forth in New York's Domestic Relations Law. You satisfy the following if one of the following applies:
  • Either you or your spouse has been a resident of New York for at least two years immediately preceeding the commencement of the divorce action.

    OR


  • Either you or your spouse have lived in New York for the last year or more and:
    1. The marriage ceremony was in New York State
    2. You and your spouse have resided as husband and wife in New York State
    3. he grounds for the divorce occurred in New York State


    OR


  • Both you and your spouse live in new York State and the grounds occurred in New York.



What if my spouse will not sign the divorce papers?

Answer: Although it is helpful for your spouse to sign an "Affidavit of Defendant", it is not necessary. You may still obtain an uncontested divorce if your spouse does not file documents objecting to the divorce after having been served with the summons and complaint.


What are the grounds for a divorce in New York?

Answer: You must have grounds for a divorce in New York State. Unlike other jurisdictions, which allow for divorces based on "irreconcilable differences", New York State's Domestic Relations Law requires that you have one of the following grounds for a divorce:

    Cruel and inhuman treatment: Your spouse engaged in conduct that was cruel and inhuman and endangered your physical and/or emotional well being.

    Abandonment: Your spouse left you without your consent or any good reason and stayed away for more than one year.

    Constructive Abandonment: Your spouse refused to have sexual relations with you for more than one year and there was no physical or mental reason to prevent sexual relations.

    Confinement: Your spouse was confined to prison after the marriage and more than three years of incarceration have elapsed.

    Adultery: Your spouse had sexual intercourse with another person during your marriage (you are generally required to present the court with the name of the party with whom your spouse had sexual intercourse, and the dates and location(s) where the adultery occurred. For these reasons, the ground for divorce is disfavored.

    Conversion of a Judgment of Separation: You and your spouse have lived separate and apart for more than one year after the granting of a judgment of separation and/or for more than one year after the execution of a valid separation agreement.



Which "ground" is typically used for uncontested divorces in New York?

Answer: Abandonment and constructive Abandonment are the grounds most often used for uncontested divorces in New York State. These are by far the least offensive grounds, and are therefore most likely to encourage the cooperation of your spouse in obtaining a divorce. Conversely, allegations of cruelty or adultery are inherently offensive, and may motivate your spouse to contest your divorce.


What are the factors that New York courts consider in determining spousal support/alimony?

Answer: Either spouse may be awarded maintenance, without regard to marital fault, based on the Court's analysis of the following factors: (1) the income and property of the spouses, including any marital property divided as a result of the dissolution of marriage; (2) any transfer of property made by either party anticipation of divorce; (3) the duration of the marriage; (4) either party's wasteful dissipation of marital property; (5) the contribution of each spouse to the marriage and the career of the other spouse, including services rendered in homemaking, child care, education, and career building of the other spouse; (6) the tax consequences of any maintenance award each spouse; (7) any custodial and child support obligations; (8) the ability of the spouse seeking support to become self-supporting and the time and training necessary; (9) any reduced lifetime earning capacity as the result of having foregone or delayed education, training, employment, or career opportunities during the marriage; (10) whether the spouse from whom maintenance is sought has sufficient assets and income to pay maintenance to the other spouse; and (11) any other factor the court deems just and equitable. [Consolidated Laws of New York Annotated; Domestic Relations Law, Volume 8, Section 236, Part B].


Will a prenuptial agreement that contains a waiver of spousal support be enforced in New York?

Answer: A duly executed prenuptial agreement is accorded the same presumption of legality as any other contract. Bloomfield v. Bloomfield, 97 NY2d 188 (2001). The spouse seeking to set aside an agreement has the burden of establishing fraud, duress, or other impediment, attributable to the other spouse (e.g. the agreement's proponent). Matter of Greiff, 92 NY2d 341, at 344 (1998).

The mere fact that an agreement provides for a waiver of maintenance, this alone does not render an agreement unconscionable. Siclari v. Siclari, 291 AD2d 392 (2nd Dept. 2002) [unfair and unreasonable agreement resulted in unconscionable maintenance waiver]. Even in a very long marriage, the fact that a spouse waived maintenance years ago, but she has never worked outside the home since then, does not automatically render the waiver of maintenance unconscionable. See, Bloomfield v. Bloomfield, supra. [26 year marriage, children, homemaker, no skills, no maintenance]. Parties can always agree to waive maintenance. Such waiver provisions are routinely enforced, unless they render either party a public charge. GOL § 5-311.


Will anybody have access to the papers filed in court?

Answer: No. The privacy accorded matrimonial matters is a recognition of the inherently personal nature of these proceedings. The law prohibits the clerk of the court and the court reporter from allowing anyone, other than a party, or the attorney or counsel of a party, except by order of the court, to examine or copy of any of the pleadings, affidavits, findings of fact, conclusions of law, judgment of dissolution, written agreement of separation or memorandum, or testimony.


Until What Age Is a Parent Obligated to Support a Child?

Answer: In New York State, a child is entitled to be supported by his or her parents until the age of 21. However, if the child is under 21 years of age, and is married, or self-supporting, or in the military, the child is considered to be "emancipated" and the parents' support obligation ends. A child may also be considered "emancipated" if he or she is between 17 and 21, leaves the parents' home and refuses to obey the parents' reasonable commands.


What Procedures Can Be Used to Enforce Child Support Obligations?

Answer: Child support enforcement proceedings are often commenced in the Family Court. The petitioner may file a "violation petition" asking the court to take action against a respondent who fails to pay a support order. The petition must be served upon (delivered to) the respondent. A hearing is then held to decide whether the respondent has violated the court's order. The hearing examiner may enforce the order by directing SCU to take the payments directly from the respondent's paycheck, order the respondent to pay a lump sum toward back monies owed, or take other steps to collect the money owed. A respondent who falls behind in payments also risks having his or her driver's license or professional and business licenses suspended. If the respondent is found to have willfully and voluntarily failed to pay a child support order, he or she may be jailed for up to six months, for contempt of court.

What factors do courts take into account when deciding who gets custody of the children?

Answer: A court gives the "best interests of the child" the highest priority when deciding custody issues. This broad standard is, by definition, fact-specific, and its application in a given situation depends upon a variety of factors, including:
  • The child's age, gender, mental and physical health
  • The mental and physical health of the parents
  • The lifestyle and other social factors of the parents, including whether the child is exposed to second-hand smoke and whether
  • There is any history of child abuse
  • The love and emotional ties between the parent and the child, as well as the parent's ability to give the child guidance
  • The parent's ability to provide the child with food, shelter, clothing and medical care
  • The child's established living pattern (school, home, community, religious institution)
  • The quality of the schools attended by the children
  • The child's preference, if the child is above a certain age (usually about 12), and
  • The ability and willingness of the parent to foster healthy communication and contact between the child and the other parent.

Assuming that none of these factors clearly favors one parent over the other, most courts tend to focus on which parent is likely to provide the children a stable environment. With younger children, this may mean awarding custody to the parent who has been the child's primary caregiver. With older children, this may mean giving custody to the parent who is best able to foster continuity in education, neighborhood life, religious institutions and peer relationships.


When a court awards physical custody to one parent and "visitation at reasonable times and places" to the other, who determines what's reasonable?

Answer: The parent with physical custody is generally in the driver's seat regarding what is reasonable. This power accorded to the custodial parent can be abused, with the result that the noncustodial parent gets minimal visitation, or, in some cases, a return to court to enforce or modify visitation rights. To avoid such problems, many courts now prefer for the parties to work out a fairly detailed parenting plan (known as a parenting agreement) which sets the visitation schedule and outlines who has responsibility for decisions affecting the children.


If one parent moves out and leaves the kids with the other parent, does it hurt his or her chances of getting custody at a later date?

Answer: In a word, yes. Even if a parent leaves to avoid a dangerous or highly unpleasant situation, it's unwise to leave the children behind if he or she wants physical custody down the line.


Are there special issues if a gay or lesbian parent is seeking custody or visitation rights?

Answer: In a few states, including Alaska, California, District of Columbia, New Mexico and Pennsylvania, a parent's sexual orientation cannot in and of itself prevent a parent from being given custody of or visitation with his or her child. As a practical matter, however, lesbian and gay parents -- even in those states -- may be denied custody or visitation. This is because judges, when considering the best interests of the child, may be motivated by their own or community prejudices, and may find reasons other than the lesbian or gay parent's sexual orientation to deny custody or appropriate visitation.


Are mothers more likely to be awarded custody over fathers?

Answer: In the past, most states provided that custody of children of "tender years" (about five and under) had to be awarded to the mother when parents divorced. This rule has been explicitly rejected in most states, or relegated to the role of tie-breaker if two fit parents request custody of their pre-school children. the majority of jurisdictions require their courts to determine custody on the basis of the "best interests" of the children without regard to the gender of the parent.
The majority of divorcing parents agree that the mother will have custody after a separation or divorce and that the father will exercise reasonable visitation. This sometimes happens because fathers presume that mothers will be awarded custody or because the mother is more tenacious in seeking custody. In still other situations, the parents agree that either the mother has more time to care for the children.

Divorce forms including New York divorce forms and California divorce forms.