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Your Complete Guide to Divorce in New York

    

The New York Divorce Landscape

New Yorkers are maximalists. Apartments may be small, but the metro area’s culture is undeniably geared toward the biggest, the best, and the most. So, it may come as a surprise to you that New York State actually ranks pretty modestly in terms of divorce rates. You might think that’s good news... Right up until you find your marriage ending, and you aren’t sure if you have the knowledge and resources you need to stay afloat.

The breakdown of a marriage can be an extremely lonely and confusing time, and New York’s Domestic Relations Law (or DRL) isn’t exactly a comforting read. If trudging through arcane statutes isn’t your idea of a good time, that’s where we come in. Divorce is happening whether we like it or not, so we here at It’s Over Easy would love to see more of those divorces stay low-conflict. If you and your soon-to-be-ex feel the same way, then our platform might be just what you need. If the idea sounds nice, but you’re not sure if you (or your spouse) can get there, then we hope our community resources, and this comprehensive New York guide, can help make things just a little bit easier.

First Steps in Preparing for Your Divorce

So, you and your spouse haven’t been connecting lately. You’re arguing more than you used to, and alone time has gradually become more and more appealing. It can be hard to determine what constitutes a sign of the end, and what is just an expression of unrelated stress. If you find yourself repeatedly humming "Should I Stay or Should I Go," then here are a few things to consider.

When you opt to end things, there are some practical things you should do before filing. You know that you and your spouse will be partitioning your finances, and it’s helpful to figure out what you’re working with before the negotiations begin. This means developing a comprehensive list of your debts and assets. Some people also have to exert some effort determining their income; this is less of an issue if you’re just a plain old W-2 employee. Info like this is important to have even for a completely amicable It’s Over Easy divorce, so it’s always a good idea to plan ahead.

If you intend to file for divorce in New York, you’ll also have to make sure you meet the state’s residency requirements. You have three options here, any of which are independently adequate. You qualify for a New York divorce if:

  1. You or your spouse has lived in New York State continuously for at least two years.
  2. At least one of you has lived in New York for a minimum of one year AND you either got married in New York, lived in New York together as a married couple, or the reason for your divorce occurred in New York.
  3. Both you and your spouse are current New York residents AND the reason for your divorce occurred in New York.

If one or more of these stipulations applies to you, congrats! You qualify for a divorce in New York. But now the real work begins. Here are a few questions you should ask yourself as you begin your divorce journey.

Do I Need a Lawyer?

Once the initial preparations are out of the way, you’ll want to start developing a legal . The most basic question you should ask yourself is whether your specific situation calls for the services of an attorney. Keep in mind, New Yorkers--you are not required to work with a lawyer, so the pros and cons are yours to weigh. The biggest downside for most people is, of course, the expense. The average cost of a New York divorce is about $17,100 with $13,500 of that price tag constituting attorney’s fees. Would you believe that New York family attorneys charge an average of $325 an hour? Suffice to say, this is a decision you do not want to take lightly. The total average cost of a New York divorce goes up to $25,600 if you have minor children. Pretty steep, right?

If your divorce is uncontested:

Don’t fret! At It’s Over Easy, you can make it through your divorce with far less stress at a fraction of the cost. We deal with uncontested, no-fault divorce, which is as peaceful as this process gets. In an uncontested divorce, the parties agree on things like financial and custody arrangements. In a no-fault divorce, neither you nor your spouse is asserting that the other is legally responsible for the breakdown of the marriage. If this sounds like you, then DIY divorce is an excellent option. Before we came around, DIY meant wrestling with an intimidating 110-page packet from the New York Supreme Court. But our platform lets you skip it entirely! We’ll ask you some straightforward questions about you, your finances, and your kids (if you have them), and then we’ll put together the paperwork. That way, your DIY divorce doesn’t turn into DI-”why me???” divorce.

The more contentious a divorce is, however, the more important legal representation becomes. Technically speaking, every New York divorce is a lawsuit where one spouse is suing the other. That’s why you’ll notice references to a plaintiff and a defendant in a lot of the paperwork. How distinct these two roles are depends largely on the grounds for divorce.

The DRL lists seven legally sufficient reasons for the dissolution of a marriage:

  1. Cruel and inhuman treatment
  2. Abandonment
  3. Confinement in prison
  4. Adultery
  5. Separation pursuant to a preexisting judgement or decree
  6. Separation pursuant to a written agreement between the parties
  7. Irretrievable breakdown of the parties’ relationship-- a.k.a. “Irreconcilable differences.”

You can probably tell that the first four reasons above imply wrongdoing on the part of one spouse, while the latter three reasons are just various ways to say, “It’s over.” In a fault divorce, the plaintiff is saying that the defendant did something wrong, and the plaintiff is obligated to prove it. In a no-fault divorce, the plaintiff is just the party who initiates the process, and they and the defendant will be responsible for slightly different paperwork.

If your divorce is contested:

Now, on to whether or not your divorce is contested. Some divorces are all-out battles over custody or assets, but that is precisely what we believe should be avoided at all costs. Those situations can be devastating for all involved, but it doesn’t have to be that way. Even if you have a few small disagreements, you can always consult with a couples’ counselor or mediator (many of whom are listed in The Index) and then bring it all to fruition with It’s Over Easy. A divorce is uncontested as long as the terms are settled outside of the legal system, as opposed to leaving those decisions up to a Family Court judge. Which brings us to the other major perk of an uncontested divorce with It’s Over Easy, aside from dramatically cutting costs.

In the state of New York, decisions regarding the terms of a divorce (e.g. spousal support, child custody, and the division of debts and assets) are governed by Family Court. However, only a New York Supreme Court judge can actually finalize a divorce. So, if your divorce is contested, you’ll probably have to navigate two separate court systems in order to get this over with.

Long story short, for a contested and/or fault divorce, legal representation is extremely helpful. If you find yourself in this unfortunate situation but you simply can’t afford an attorney, there are a number of legal aid and pro-bono options that may be able to lend a hand depending on your need and your means. For an uncontested, no-fault divorce, you can almost certainly handle this without a lawyer--especially with the help of It’s Over Easy!

Common Grounds for Divorce

So, you saw some references to Family Court decisions above. In an uncontested divorce, a legal judgement is replaced by a settlement agreement, which a judge will simply sign off on. These contracts are pretty straightforward, but they do tend to involve some legalese, so It’s Over Easy will draft yours for you as part of your divorce package. All you and your spouse have to do is answer some simple questions about your plans for things like spousal support, division of debts and assets, child support, custody, and visitation. So let’s get into the nitty-gritty of what these decisions mean in New York.

Spousal Support

Spousal support (also known as “alimony” or “maintenance”) is money paid by one former spouse to the other pursuant to a final Judgement of Divorce. You and your ex can agree to an amount and schedule yourselves and include these terms in your settlement agreement.

Otherwise, the state of New York has a formula to determine what the guideline amount of maintenance should be. This formula applies fixed calculations to income of up to $184,000, but income exceeding $184,000 is treated in accordance with the court’s discretion. Section 412 of the Family Court Act lists fourteen factors for the judge to consider, but ultimately their determination will just be whatever they think is fair. In general, the length of your marriage determines how long maintenance will continue. However, if you are opting for guideline maintenance (as opposed to your own personalized settlement agreement), spousal support must terminate upon the death of either party, or the beneficiary’s remarriage. So, practically speaking, you probably don’t want to waste energy seeking support from your ex if remarriage is on the immediate horizon for you.

Child Support

Child support can, of course, be contracted into your settlement agreement just like spousal support, but New York also has a formula to determine the total for you. You can go with either of these options in an It’s Over Easy divorce. Child support is payable until age twenty-one. It’s important to note that the guideline amount is calculated based on the parties’ income after maintenance, because giving or receiving spousal support obviously affects one’s ability to support a child.

Custody and Visitation

You may not know this, but there are actually two totally distinct types of child custody: physical and legal. Physical custody means actually having the child(ren) in your care. Legal custody means making decisions for your child(ren)--e.g. educational, medical, religious, etc. Usually parents will share physical custody in some capacity, except in extreme cases like abuse or neglect. Sharing legal custody is a little less straightforward, but you have a couple of options that might work.

Sometimes, parents divvy up “spheres of influence” for legal custody. For example, maybe your spouse is in charge of your child’s religious upbringing, but you get to make decisions about her education. Alternately, parents can have equal say in all areas and hire a mediator when they try their best and still can’t agree on something. Check out this article for more info on your child custody options.

Division of Debts and Assets

Were you surprised to learn that there are two types of custody? Well, you’re in for a treat because there are two types of property, too! Marital property is anything that either of you obtained between the day you got married and the beginning of your divorce action. Separate property, on the other hand, was not acquired within that time. It legally belongs to whoever acquired it. Inheritances and compensation for personal injuries are also considered separate property, even if they were received during the marriage. However, if you put separate property into a joint account, it has a habit of magically turning into marital property, so it’s always your best bet to keep certain funds partitioned, just as a precaution. Again, under a separation agreement, you and your spouse can do whatever you want, but under the New York guidelines, only marital property gets distributed between the two of you.

The way that property is divided under these guidelines is called equitable distribution. Unlike in some other states, New Yorkers rarely see a 50/50 split, because equitable does not mean equal. Instead, the court will make a judgement of what’s fair based on a list of factors including the liquid or non-liquid nature of the property, the length of the marriage, and the tax consequences to each party.

How Long Does it Take to Get a Divorce in NY?

One of the beauties of getting divorced in New York is that there is no formal waiting period between the initial filing and when your divorce can be finalized. There are, however, time frames before you file associated with some of the seven possible grounds for divorce (see above). For instance, if you’re going for the classic “irretrievable breakdown of relationship,” you and your spouse will have to sign off that you realized it was over at least six months ago.

Beyond that, there are quite a few deadlines that you will have to meet in order to keep things moving in the right direction. At It’s Over Easy, we have you answer all of our simple, straightforward questions right off the bat so we can be the ones worrying about those details in the process. We also promise to get everything as soon as humanly possible, because no one wants a divorce hanging over their head, even if it is a relatively painless one. Results vary greatly in contested divorces, and the New York Supreme Court is a government agency, but if you go with us, you can expect to be officially split within a few months of completing the platform.

I’m Divorced! Now What?

First, give yourself a pat on the back and breathe a long sigh of relief! You made it through this, and it’s time for you to focus on more satisfying things. Believe it or not, you now have an amazing opportunity to reinvent yourself, and we don’t want you to miss it. Short on ideas? Then check out The Index for everything from venues for a girls’ night out to fitness classes.

The last thing we ask is that you pay it forward. Show friends, family, and even strangers that there is life after divorce. People have all different paths to happiness, and you and your spouse are just better apart. You can always spread this message within the It’s Over Easy community. Leave a comment on the Insights Blog, join the conversation on our social media, share the Divorce Sucks! Podcast with somebody who needs it. We are so grateful that you joined the evolution of dissolution, and we hope you’ll stick around. We wish you nothing but the best as your life’s journey continues.

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