Divorce in New York: What to Know at the Outset

If you are contemplating divorce in New York, the process can feel overwhelming. While every situation is unique, there are foundational legal principles and procedural steps that apply in nearly every case. Understanding them early can prevent unnecessary delay, expense, and conflict.

1. Grounds for Divorce

New York permits both fault-based and no-fault divorce. In practice, most divorces proceed under the no-fault ground of an “irretrievable breakdown” of the marriage for at least six months.

Allegations of fault — such as adultery or cruelty — are rarely necessary to obtain a divorce and often complicate proceedings without providing strategic benefit.

2. Residency Requirements

Before filing, at least one spouse must satisfy New York’s residency requirements. Generally, this means:

• One spouse has lived in New York for at least two years; or

• One year, if certain connections to the state exist (such as marriage in New York or prior residency during the marriage).

Meeting jurisdictional requirements is essential before commencing an action.

3. Commencing the Divorce

A divorce is initiated by filing a Summons with Notice or Summons and Complaint in Supreme Court (the trial-level court in New York). The filing spouse must then properly serve the other spouse in accordance with statutory rules.

Improper service can delay or invalidate proceedings.

4. Equitable Distribution

New York is an “equitable distribution” state. This does not necessarily mean a 50/50 split. Instead, marital property is divided in a manner the court considers fair, taking into account:

• Duration of the marriage

• Income and property of each spouse

• Contributions to the marriage (financial and non-financial)

• Future earning capacity

• Wasteful dissipation of assets

Separate property — such as assets owned before marriage or received by inheritance — is generally not subject to division, provided it has not been commingled.

5. Spousal Maintenance

New York provides statutory guidelines for calculating temporary maintenance during the divorce and advisory formulas for post-divorce maintenance. However, courts may deviate from guideline amounts based on factors including income disparity, age, health, and duration of the marriage. Maintenance decisions are highly fact-specific.

6. Child Custody and Support

If children are involved, the court’s primary concern is the “best interests of the child.” Custody determinations address both legal decision-making authority and physical residence.Child support is calculated pursuant to statutory guidelines, based largely on parental income and the number of children, though courts may adjust amounts in appropriate circumstances.

7. Uncontested vs. Contested

If spouses reach agreement on all material issues, the divorce may proceed uncontested, significantly reducing cost and time. If disputes remain, the matter becomes contested and may require motion practice, discovery, or trial.

Early legal guidance can help determine which path is appropriate.

8. Immediate Practical Steps

If you are preparing for divorce, consider:

• Gathering financial documents (tax returns, bank statements, retirement accounts, business records)

• Avoiding significant financial transfers without legal advice

• Preserving digital and financial records

• Consulting counsel before making major decisions affecting property or children

  
  

Thoughtful preparation at the outset often shapes the efficiency and outcome of the entire process.