Grounds

Grounds for divorce are set forth in NY DRL §170(1)-(7), as follows.

• Cruel and inhuman treatment (the conduct of the defendant must endanger the physical or mental well-being of the plaintiff as to render it unsafe or improper for the plaintiff to cohabit with the defendant).
• Abandonment (actual or constructive, for a period of one or more years).
• Imprisonment (defendant incarcerated for three or more consecutive years after the marriage).
• Adultery.
• Living separate and apart for one or more years pursuant to a written separation agreement that was subscribed by the parties and acknowledged or proved in the form required for a deed to be recorded or pursuant to a decree/judgment of separation; the plaintiff must have substantially performed all the terms and conditions of the agreement or decree/judgment.
• Irretrievable breakdown of the marriage for a period of at least six months, provided that one party states so under oath. (The court will not issue a Judgment of Divorce until the ancillary custodial and economic issues have been resolved.)

These grounds apply to same-sex spouses, but they do not apply to civil partners. It is possible to enter into a domestic partnership; however, domestic partnerships provide limited rights and can be terminated by either partner at any time by filing a termination statement in person at the city or county office in which the couple registered their partnership. Domestic partnerships are not dissolved by divorce courts.

Process and Timeline

There is no mandatory timeline for divorce and courts maintain discretion with respect to the length of individual proceedings.

The parties do not need to attend court, provided that the necessary submissions have been filed with the Supreme Court of the State of New York, in the county where the parties are divorcing. It is not possible to procure a divorce without the Supreme Court’s entry of a Judgment of Divorce, even if the matter is resolved without court intervention.

There is no period of separation required before commencing a divorce action in New York State.

Rules for Service

New York State law requires that the defendant in a divorce action be personally served with the summons with notice or summons and verified complaint. To have your spouse served in any other way, you must get permission from the court, or, if your spouse has legal representation, that attorney may agree to accept service of the summons with notice or summons and verified complaint on behalf of the defendant.

Religious Marriages and Divorces

In certain cases, New York courts may recognise a marriage as valid even if no marriage licence or marriage certificate was issued. If the couple has a religious ceremony and genuinely intends to enter into a legal marriage, their marriage may be recognised under New York law. DRL §25 provides that a properly solemnised marriage ceremony will not be void based on the failure to obtain a marriage licence. DRL §12 requires that the parties to the marriage solemnly declare each other as husband and wife (or other spousal arrangement) in the presence of an officiant or clergyman and a witness. In the absence of a licence, the court will balance various factors to determine whether the marriage is legitimate and enforceable. These cases are rare and highly fact-specific.

As for divorces in cases where the spouses were married in a religious ceremony but with a legitimate marriage certificate, once a divorce is finalised, the Supreme Court issues a decree, and then either party is free to remarry. Some consideration given to the fact that spouses may be bound under religious marriages unless certain steps are taken to release that spouse from marriage under religious law.

Other Processes in Relation to Ending a Marriage

New York Domestic Relations Law provides for other actions to void a marriage, for annulment or separation (NY DRL §§5, 6 and 7, 140 and 200, respectively). While a married couple may enter into a separation agreement, which is intended to be enforceable on its own, and which may be So Ordered by a court, thus making it enforceable as a court order, that agreement must be incorporated into (but not merged with) a judgment of divorce in order to formally dissolve a marriage.

Jurisdictional Grounds

The parties must meet jurisdictional requirements, found in New York Domestic Relations Law (NY DRL) §230, as follows.

• The marriage occurred in New York, one party has resided in New York continuously for at least one year immediately prior to the commencement of the action (“commencement”) and that party remains a resident as of commencement.
• The parties have resided in New York as husband and wife and one party has resided in New York continuously for at least one year immediately prior to commencement.
• The cause of action has arisen in New York and both parties are residents at commencement or one party has resided in New York continuously for at least one year immediately prior to commencement. (However, see Stancil v Stancil, 47 Misc.3d 873 [Sup. Ct., N.Y. Co. 2016], where the trial court found under the facts presented that a party could not accelerate the two-year residency requirement by alleging one year of residency coupled with no fault grounds.)
• Either party has resided in New York for a continuous period of two years prior to commencement.

The foregoing apply to same-sex spouses but not civil partners.

Domicile, Residence and Nationality

Domicile and nationality are not relevant for jurisdictional purposes where the residency requirements above are met.

A person is a “resident” of New York State when they have a significant connection with some locality in the state as the result of living there for some length of time during the course of a year. Deazle v Miles, 77 A.D.3d 660,908 N.Y.S.2d 716 (2d Dep’t 2010).

Contesting Jurisdiction

A party to divorce proceedings can contest jurisdiction.

Stay of Proceedings

A party can apply to stay proceedings in order to pursue divorce proceedings in a foreign jurisdiction. See jurisdiction discussion above.

Grounds

See response to 1.2 Choice of Jurisdiction. 

If a separate child or spousal support action is commenced under the Family Court Act, then the following provisions may apply.

• With respect to child support proceedings, the court must have personal jurisdiction over the respondent.
• In cases where the respondent is not a resident of New York State:
1. the individual is personally served with a summons and petition within this state;
2. the individual submits to the jurisdiction of this state by consent, by entering a general appearance, or by filing a responsive document or other action having the effect of waiving any contest to personal jurisdiction;
3. the individual resided with the child in this state;
4. the individual resided in this state and provided prenatal expenses or support for the child;
5. the child resides in this state as a result of the acts or directives of the individual;
6. the individual engaged in sexual intercourse in this state and the child may have been conceived by that act of intercourse;
7. the individual asserted parentage of a child in the putative father registry maintained in this state by the office of children and family services; or
8. there is any other basis consistent with the constitutions of this state and the United States for the exercise of personal jurisdiction.

Contesting Jurisdiction

A party to financial proceedings can contest jurisdiction.

Stay of Proceedings

A party is able to apply to stay proceedings in order to pursue financial proceedings in a foreign jurisdiction.

Some factors that the court may consider are which party files first in time, whether there is ongoing litigation in another forum, whether New York is an inconvenient forum, and whether the parties have contacts in a particular jurisdiction.

Hearing Financial Claims After a Foreign Divorce

Financial claims can be made following a foreign divorce, to the extent that issues are left open by the foreign judgment for enforcement and/or modification by another jurisdiction or where the laws of the State of New York allow for enforcement and/or modification of the foreign judgment.

New York’s Civil Procedure Law and Rules provide for the enforcement of foreign money judgments in New York, pursuant to the Uniform Foreign Country Money Judgments Act (2021), provided certain due process standards have been met in the obtaining of the foreign judgment.

Other provisions of the NY Domestic Relations Law (DRL §§75 and 236) and Family Court Act (FCA § 115 and Article 5-B) provide for the recognition and enforcement/modification of foreign divorce judgments, child custody and child support orders.

Service Requirements

The Family Court Act §427 lays out the manner of service of process for support proceedings in New York Family Courts.

If the financial requests for relief are part of a divorce action in Supreme Court, then the summons with notice/summons with verified complaint are to be served personally on the defendant spouse unless there is permission from the court to serve that spouse using an alternative method, or if the defendant spouse agrees to have an attorney accept service on their behalf. (Note: There may be alternative methods of service available where a NY action is being served in a foreign jurisdiction.)

Process and Timeline

There is no mandatory timeline and courts maintain discretion as to the length of individual proceedings, as well as the process, from the initial appearance, status and compliance conferences, and through and after trial.

New York law applies the principles of equitable distribution, which does not necessarily mean an equal distribution of marital assets. The court will take into account 16 factors, including but not limited to:

• the income and property at the time of marriage, and at the time of the commencement of the action;
• the duration of the parties’ marriage and the age and health of both parties;
• the need of a custodial parent to occupy or own the marital residence and to use or own its household effects;
• the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution;
• the loss of health insurance benefits upon dissolution of the marriage;
• any award of maintenance under subdivision 6 of DRL § 246(B) of the DRL;
• any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wager earner and homemaker, and to the career potential of the other party;
• the liquid or non-liquid character of all marital property;
• the probable future financial circumstances of each party;
• the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party;
• the tax consequences to each party;
• the wasteful dissipation of assets by either spouse;
• any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
• whether either party has committed an act or acts of domestic violence against the other party and the nature, extent, duration and impact of such act or acts;
• in awarding the possession of a companion animal, the court shall consider the best interest of such animal. “Companion animal”, as used in this subparagraph, shall have the same meaning as in subdivision 5 of Section 350 of the Agriculture and Markets Law; and
• any other factors which the court expressly finds to be just and proper.

Financial Orders to Regulate or Reallocate Assets or Resources

The court will typically determine whether a division of property occurs on an in-kind basis or whether it is appraised and a credit is given to the spouse who is not retaining the property post-divorce. The court considers the factors set forth in the response above.

Identifying the Assets

There is a financial discovery process whereby each spouse prepares a net worth statement identifying all assets and liabilities, as well as broad exchange of financial documentation in discovery, including income tax returns, bank account statements, brokerage and investment account statements, real property records, business records and so on. Parties may also engage in depositions, exchange interrogatories and serve discovery subpoenas for information and/or deposition testimony.

A court may make orders for disclosure against third parties.

Property Regimes

New York is an equitable distribution state, meaning the division of assets upon divorce is not necessarily equal.  Rather, a court will look to the 16 factors provided by statute to determine a fair and equitable division of assets.

Trusts

New York courts recognise trusts.

The court may consider distributions from a trust in determining a party’s income. To the extent that marital assets have been utilised to acquire property held by a trust, that property might, in certain circumstances, be deemed marital property or result in distribution credits.

The treatment of a trust depends largely on the circumstances surrounding the creation of the trust as well as the terms of the trust. 

The case law is varied with regard to how trust assets are treated in the context of equitable distribution. For example, to the extent that a trust was created by a non-party for the benefit of one party as an estate planning mechanism, or both parties consented to and purposefully created a trust for the benefit of each other and/or their children, the trust assets are more likely to be considered outside of the marital estate, while the trust terms remain intact. See Oppenheim v Oppenheim, 168 A.D.3d 1085 (2nd Dept. 2019).

However, factors may be present which warrant piercing the trust or providing for an equitable distribution credit for marital assets that are contributed to a trust. This is especially so where marital assets have been placed into trust without one party’s consent, where marital assets are placed into a trust so as to defeat a spouse’s rights to access martial assets, or where the trust itself is invalid. See Riechers v Riechers, 267 A.D.2d 445 (2nd Dept. 1999); Surasi v Surasi, 2001 NY Slip Op 40408(U) (Supreme Court of Richmond County 2001).

Spousal maintenance is authorised by statute. It is regularly awarded in divorce actions and the parties may agree upon payment of spousal maintenance in written settlement agreements. There has been a shift to a more formulaic approach in recent years, especially as to duration.

Domestic Relations Law Section 236 (B) provides two methods for determining temporary and post-divorce maintenance, with a list of factors to be considered by a court for each.

New York courts are empowered by statute (DRL § 236 (B)) to award post-divorce maintenance. There are also durational guidelines for maintenance provided by statute, as follows:

• in marriages lasting 0 to 15 years, payments should last 15% to 30% of the marriage’s length;
• in marriages lasting 15 to 20 years, payments should last 30% to 40% of the marriage’s length; and
• in marriages lasting over 20 years, payments should last 35% to 50% of the marriage’s length.

Prenuptial and postnuptial agreements are recognised in New York State. New York Domestic Relations Law Section 236 (B) (3) explicitly provides: “An agreement of the parties made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties and acknowledged or proven in the manner required to entitle a deed to be recorded.” Foreign agreements are largely enforced, provided that the necessary formalities are met for the agreement to be valid and enforceable. An agreement’s terms must not violate New York’s public policy; there are limited other bases that might render an agreement, or certain of its terms, unenforceable (eg, the agreement was procured by fraud, duress, coercion or contains unconscionable provisions).

New York courts will enforce the terms of prenuptial and postnuptial agreements so long as they are made in conformance with standards for contracts, meaning that the agreement cannot be the product of fraud, duress, or coercion, and cannot be unconscionable or violate public policy. 

A New York marital agreement must be executed by the parties and acknowledged (as is required for a deed to be recorded, per the New York Real Property Law). Otherwise, a court will not be authorised to enforce the agreement. Child support and child custody terms are usually not included in prenuptial and postnuptial agreements.

There are no financial rights that arise solely from cohabitation. Certain civil claims may be possible if the couple owns jointly titled property, or they have entered into a cohabitation agreement. A couple may also enter into a domestic partnership, but the financial rights associated with a domestic partnership are limited.

In New York State cohabitants do not acquire any rights by virtue of length of cohabitation or children, etc. New York State does not recognise common law marriages, and the length of cohabitation does not generate rights between the couple, regardless of whether there are children. The laws regarding child custody apply to both children of a married couple and children of unmarried couples.

A party may seek an order for numerous remedies, including, but not limited to, specific performance, contempt and a money judgment for unpaid distribution. Additionally, the court may award counsel fees and costs to the non-defaulting party.

Financial claims can be made following a foreign divorce, to the extent that issues are left open by the foreign judgment for enforcement and/or modification by another jurisdiction or where the laws of the State of New York allow for enforcement and/or modification of the foreign judgment.

The media and press may report on financial cases if there is an open courtroom for that matter. In rare instances, the court may close the courtroom, primarily where there are sensitive issues affecting children, or the court may issue a “gag” order, preventing the parties from disseminating certain information.

The court records for divorce and family matters in the New York Supreme and Family courts are sealed by default, and not made available to the public. Only the parties and their attorneys have access.

A party must make a motion for the use of an anonymous case caption. It is within the discretion of the court as to whether to grant such motion. There is a high burden of proof.

There are private options for alternative dispute resolution, including mediation, arbitration and/or collaborative law.

Some courts have established county-specific mediation and neutral evaluation programmes. Some mandate party participation and some are voluntary. The courts may also directly facilitate settlement conferences.

There are no material penalties for non-compliance, as most programmes are voluntary.

Status of Agreement Reached via a Non-court Process

Such agreements are enforceable. However, they may not be enforced using remedies applicable to court orders unless the agreement is So Ordered and/or incorporated into a judgment of divorce signed by a judge.

Jurisdictional Grounds

The Uniform Child Custody Jurisdiction Enforcement Act (DRL Article 5-A; §75 et seq. (UCCJEA)) sets forth four available jurisdictional grounds: (i) the child’s home state; (ii) significant connection, which exists when a state has substantial evidence about a child as a result of the child’s significant connections to that state; (iii) emergency (abandonment or abuse); or (iv) a vacuum (when no other jurisdictional basis exists). Except in emergency cases, the UCCJEA eliminated a child’s physical presence in a state as grounds for exercising jurisdiction. DRL §76 (3).

If the proceeding concerns a child abduction, domestically, the Parental Kidnapping Prevention Act and the Uniform Child Custody Jurisdiction and Enforcement Act would apply; internationally, the United States is a treaty partner to the Hague Convention on the Civil Aspects of International Child Abduction.

Domicile, Residence and Nationality

See 1.2 Choice of Jurisdiction.

Application to Court

Either parent can file an application seeking a court order regarding the child’s residence and parenting access time, including the implementation of a parenting access schedule. There is no automatic right to primary custody in either parent. The courts’ determination of such applications is dictated by the “best interests of the child” standard.

The “best interest of the child” test means that the courts are required to balance the ability of each parent to meet the needs of the child or children.

The court will determine child custody based on the “best interest of the child” test by evaluating a number of factors. Courts will make a finding on custody based on the totality of the factors. These factors can include whether one of the parents has been the primary caretaker of the child, stability, the existence of any substance abuse issues, domestic violence, physical health of each parent, any history of abuse or neglect, and any interference with the parenting rights of the other parent. In matters where one parent has primary custody rather than joint custody with the other parent, the custodial parent is expected to encourage and foster the child’s relationship with the non-custodial parent.

A child’s preference may also be taken into consideration, depending on the age of the child. 

Legal Approach to Custody and Parental Responsibility

New York courts make custody decisions based upon the “best interest of the child” standard. If there is no court order, then both parents are deemed to have equal rights to physical and legal custody of the child. A New York court can make orders concerning custody until the child is 18 years old.

Restrictions on the Court

There are no restrictions on the court’s ability to make an order as to a child’s living and contact arrangements with regard to parents, but there are restrictionswith regard to making orders relating to extended family and non-relatives seeking custody and/or guardianship.

Child Maintenance

Known as “child support” in New York State, it is defined by statute as “a sum to be paid pursuant to court order or decree by either or both parents or pursuant to a valid agreement between the parties for care, maintenance and education of any unemancipated child under the age of twenty-one years”. New York Family Court Act Section 413 (1) (b) (2); New York Domestic Relations Law Section 236 (B) (4).

The Child Support Standards Act statute (Domestic Relations Law Section 240 (1-b) and the Family Court Act Section 413 (1)) provides a formula for calculation of child support. The formula takes into account the income of both parents and the number of children being supported. The combined income is multiplied by a percentage based on the number of children: 17% for one child; 25% for two children; 29% for three children; 31% for four children; and no less than 35% for five or more children. The amount of support to be paid by a parent is determined based on that parent’s pro rata percentage of the total combined parental income.

There is a statutory “cap” on income which is adjusted each year based upon inflation. When the combined parental income amount exceeds the then current cap, a court is not required to consider the total parental income for child support purposes; however, the court may use its discretion to increase the total parental income to be used for the child support calculation, which is referred to as “deviating”, by considering a number of factors set forth in the statute.

Parties can come to an agreement on child support outside of court by entering into a written agreement signed by the parties and acknowledged by notaries public. Such an agreement may be enforceable on its own but it may also be incorporated into a judgment of divorce or it may be So Ordered by a court such that additional legal remedies would be available for enforcement.

Both Family and Supreme Courts in New York State are empowered to make child support orders. Those made during the course of a pending proceeding are known as “pendente lite” orders. Those that concern “permanent” child support are applicable through the child/children reaching age 21.

A child who is not emancipated (meaning under the age of 21) may file a petition against their parents asking for an order of child support. However, applications brought by children are highly atypical.

Courts’ Power in Case of Disagreement

The New York courts are empowered to rule on applications filed by a party seeking an award of decision-making authority with respect to a decision concerning a child, and to issue decisions after trial concerning these issues.

Parental Alienation

New York State is cognisant of the significance of maintaining a healthy relationship between a child and both parents.  New York courts can make modifications to custody and parenting access orders (or even issue contempt of court orders) in cases where a parent interferes with/frustrates the other parent’s relationship with the child/reasonable right of access to a child.

In these cases, sometimes a court-appointed attorney for the child, who will meet with the child and with each parent and/or a forensic evaluator who then issues a report following evaluation of both parents and collateral sources may shed light on a potential parental alienation situation.

There are no enumerated factors to consider per se. These matters are handed on a case-by-case basis.

A custodial parent’s interference with the relationship between a child and a noncustodial parent has been said to be “an act so inconsistent with the best interests of the child as to per se raise a strong probability that the offending party is unfit to act as a custodial parent”. Young v Young, 212 A.D.2d 114, 628 N.Y.S.2d 957 (1995) (quoting Maloney v Maloney, 208 A.D.2d 603, 617 N.Y.S.2d 190, 191 (1994)).

Children’s Evidence

New York judges do not generally call children to the witness stand. Rather, they hold what is known as in camera “Lincoln hearings” where the children speak without the presence of the parties or counsel to the judge (only the attorney for the child(ren) is present), and what is said during these “Lincoln hearings” may weigh upon the judge’s ultimate determination of custody. The transcript of the Lincoln hearing is sealed, such that the parties do not have access to the child’s testimony.

Mechanisms Outside the Court Process

There are private options for alternative dispute resolution, including mediation, arbitration and/or collaborative law.

ADR Methods Mandated by Court

Some courts have established county-specific mediation and neutral evaluation programmes. Some mandate party participation and some are voluntary. The courts may also directly facilitate settlement conferences.

There are no material penalties for non-compliance, as most programmes are voluntary.

Status of Agreement Reached via a Non-court Process

Such agreements are enforceable. However, they may not be enforced using remedies applicable to court orders unless the agreement is So Ordered and/or incorporated into a judgment of divorce signed by a judge.

Requirements Imposed by Statute

There are no requirements imposed by statute for parties to engage in alternative dispute resolution.

Media and Press Reporting

The media and press are able to report on child cases, however, the records of divorce and family matters in the New York Supreme and Family courts are sealed by default, and not made available to the public. Only the parties and their attorneys have access.

Anonymising the Child

A child’s initials are used in court decisions regarding custody and child support.