New York law allows married spouses to file for a legal separation. A legal separation is an alternative to filing for a divorce when spouses no longer wish to live together. Most of the issues that can be settled in a divorce can also be settled in a legal separation. In contract to getting an actual divorce, at the end of a legal separation the spouses would still be legally married are still and they are not legally able to remarry.
In New York, spouses can obtain a legal separation by through a written agreement by the parties or by going to court and requesting a judgment of legal separation. If a couple has been legally separated for over a year, it would be recognized as a legal basis for divorce.
What Paperwork Do You Need to File for Divorce?
Getting a divorce in New York is a complicated process, even if your divorce is uncontested. The first form you would need to obtain and fill out is called “Summons With Notice (Form UD-1)” and a “Verified Complaint (Form UD-2).” The Summons is the form that starts the divorce process and names you or your spouse as defendant and plaintiff. Both of these forms require you to provide widespread information. After you fill out the forms, you need to take two additional copies down to the county clerks office to file them. The clerk will give you an Index number and a filing date and you will need to pay a filing fee for the Index number. The next step after you have filed the complaint would be to serve the summons and complaint to your spouse within 120 days after the file date.
Community Property vs. Separate Property
Unlike most states, New York is not a community property state, but rather an equitable distribution state. In a community property state, property acquired during marriage is considered to be owned jointly between the spouses and is divided equally upon divorce.
In an equitable distribution state such as New York, the judge aims to make the distribution of property obtained during marriage fair and takes into the factor of each spouse’s contribution to the marriage and each spouse’s needs after the divorce. The following factors are considered:
- The income and property of each spouse on the day of marriage and on the day of divorce
- The financial needs of both parties
- The age of each spouse
- If alimony will be awarded to either party
What Should You Do If There are Children Involved?
In a New York divorce, if children are involved and child custody comes into issue the judge is offered a very broad choice in considering the child’s best interest. The law only requires the judge to consider what will encourage the happiness and well being of the child, and to consider “facts and circumstances” of the specific family situation. But if the parents can come to an agreement, then their agreement will control the custody situation and a judge will not need to decide.
As for child support payments, under New York’s Child Supports Standards Act, are to be paid by the non-custodial parent to the custodial parent.
Do You Need to Pay Alimony?
In New York, alimony is called “maintenance”. If there was no agreement between the parties, the court may award alimony after considering:
- the standard of living recognized during the marriage,
- whether the party seeking alimony lacks sufficient property and income to provide for his or her needs,
- whether the other party has enough property or income to pay alimony, and
- “the circumstances of the case and of the respective parties.”
Where Can You Find the Right Divorce Lawyer?
Dealing with divorce can be difficult and generally requires the assistance of a qualified local New York divorce lawyer. You may need to hire a lawyer for advice and representation during the divorce process. Your attorney will be able to help you understand how divorce laws in your area work. Also, your lawyer will have the legal expertise that provides them with clearer foresight regarding the effects of divorce in the future.