1.Do the other issues – support, custody, alimony/Maintenance, and property – have to be decided before the divorce is final?
Yes. The question only becomes when they must be decided. For every ground for divorce in New York, except the No-Fault ground, these matters will be decided after the court makes a decision on whether the ground for divorce has been proven. If not proven, then these matters are never considered and decided upon by the court and the parties simply remain married.
However, with the No-Fault divorce, these matters must be agreed upon by the parties or resolved by the court before the court can render a No-Fault divorce.
2.How long do I have to live in this state to obtain a divorce?
New York has multiple residency categories that a party can rely upon to bring an action for divorce, separation, annulment or nullity of a void marriage thereby allowing the New York courts to have jurisdiction to decide the matter. These requirements are as follows:
Parties were married in New York and either party is a resident of New York when the action was commenced and has been a resident for a continuous one (1) year period immediately prior to the commencement of the action. OR
Parties have lived in New York as husband and wife and either party is a resident of New York when the action was commenced and has been a resident for a continuous one (1) year period immediately prior to the commencement of the action. OR
The cause of action happened in New York and either party has been a resident of New York for a continuous one (1) year period immediately prior to the commencement of the action. OR
The cause of action happened in New York and both parties are residents of New York at the time of the commencement of the action. OR
Either party has been a resident of New York for a continuous period of at least two (2) years immediately prior to the commencement of the action.
3.How do I serve the divorce complaint on my spouse? How long do I have to wait to receive my divorce?
The divorce complaint must be personally served upon your spouse by a person, other than yourself, who is at least 18 years of age. How long you will need to wait for a divorce again depends on the complexity of your situation, the number of issues that need to be resolved in the divorce, how amicably you and your spouse can be with each other, etc.
There are too many factors that come into play to give a more specific and precise answer than this.
4.How and where is a divorce complaint filed?
A divorce complaint is filed in the Supreme Court of the State of New York, and in the county where either spouse resides.
5.I don't know where my spouse is? Can I still file for a divorce?
Yes. The court can authorize service of the divorce action by substituted service if it is shown that the location of your spouse cannot be determined. Substituted service can include service on member of your spouse’s family or service by publication in a newspaper.
6.How is child support calculated in New York?
Child support in New York is a percentage of the non custodial parent’s adjusted gross income. For one child, it is seventeen percent. Two children, twenty five percent, three children, twenty nine percent, four children, thirty one percent, and for five children or more children, no less than thirty five percent. For additional information, see DRL 240 or FCA 413.
7.How is marital property divided under New York's equitable distribution law?
In New York, marital property in is divided under the theory of equitable distribution. Under equitable distribution, the court may only divide marital property when the marriage is dissolved. Each spouse receives an equitable, or “fair” share of the marital property based on the overall facts of the case, based on the thirteen factors of Domestic Relations Law (DRL) 236B(5).
8.What will happen to the marital home?
The court may allow one spouse to buy the other spouse out, it may order the home to be sold to a third party, or it may grant exclusive occupancy of the marital residence to one spouse.
9.How is child custody determined?
No single factor will determine custody. The court will look at the overall facts and circumstances and determine what is in the best interests of the children. Some of the more significant factors are (1) which parent is more likely to foster a relationship with the other parent, (2) which parent is the primary caretaker, (3) where the child is currently living and for how long the child has lived there, (4) the results of any forensic evaluation, (5) and the wishes of the child as presented by the attorney for the child. See the article on Child Custody for more information.
10.How is spousal support in New York determined?
As of 2016, there is a set formula for maintenance. The court will calculate an award of maintenance in accordance with the formula for post-divorce maintenance found in Domestic Relations Law (DRL) Section 236B(6).