If You Get a Divorce
This page provides basic information about divorce and a full general overview of the divorce procedure in New York. You may also desire to read about divorce resources available in your county. Delight be aware that some counties may have their own forms and filing instructions. For further data, delight contact the Supreme Court in the county where yous reside before attempting to file your divorce papers.
- What is a divorce?
- Where do I go for a divorce?
- What is an annulment?
- How practise I get-go a divorce case?
- Do I need a lawyer to go divorced?
- What if I cannot locate my spouse?
- To start a divorce instance, what legal requirements do I demand to meet?
- What is the departure between a Contested and an Uncontested Divorce?
- What is a Statement of Net Worth?
- How tin I get a divorce using a separation agreement?
- Where tin can my spouse and I get help to work out our differences outside of court?
- What volition the judge determine in my divorce example?
- How do I get certified copies of my divorce papers?
- What types of cases that are related to divorce tin can exist heard in Family Court?
- What is custody?
- What is the difference between legal custody and physical custody?
- How will a judge decide custody?
- What is child support?
- How does a court summate child back up?
- What happens to property after a divorce?
- What is the Equitable Distribution Law?
- Can I get spousal maintenance (sometimes called "alimony") ?
- What if I am a victim of domestic violence?
- Where can I find out more information?
What is a divorce?
Divorce is the final, legal ending of a marriage past court society. If you have a divorce case in court, you may hear lawyers and court staff phone call it a betrothed action. The person who starts the divorce is called the plaintiff, and the other spouse is chosen the accused.
Where do I go to for a divorce?
The Supreme Courtroom of the State of New York is the only court that handles divorce cases, and a Supreme Court gauge is the just person who can legally grant a divorce. You should go to the Supreme Court in the county where you or your spouse now live. You cannot become a divorce in Family Courtroom.
Although Family Court cannot give you a divorce, y'all can become to your local Family Court for aid with kid back up, child custody, child visitation, spousal support (also known as spousal maintenance), and paternity. Visit CourtHelp.org for more information on choosing the right court for your particular issue.
What is an annulment?
Unlike a divorce that ends a valid marriage, an disparateness establishes that the spousal relationship is not legally valid, and the grounds for annulment are different from a divorce. To get an disparateness, y'all will need to prove ONE of the post-obit:
• Bigamy: one of the parties was withal married to someone else at the time of the second marriage.
• Either spouse was incurably unable to have sexual intercourse at the time of the marriage.
• After marriage, either spouse becomes incurably insane for five (5) years or more. The Court may require the sane spouse to support the Marriage between persons under xviii, if the spouse under 18 wants the annulment. The disparateness will non be granted if the person under eighteen freely cohabited (had sexual relations) with the other spouse afterwards turning 18.
• Spouse is unable to understand the nature, upshot and consequences of marriage because of mental incapacity.
• Spouse agreed to marry as a outcome of force or duress by the other.
• Fraud (most common footing): the consent to marry was obtained by fraud that would have deceived an usually prudent person and was material to obtaining the other political party'south consent. The fraud must go to the essence of the marriage contract. Concealment of a fabric fact may establish fraud. Sexual intercourse evidencing forgiveness is an absolute defense.
To larn about religious annulment, you lot should consult the religious faith that performed the marriage.
Annulment is defined in Domestic Relations Police §140. If you would like an annulment, you lot should seriously consider speaking to a lawyer. The court does not provide forms for disparateness.
How do I get-go a divorce case?
You will need to buy an Index Number at the Canton Clerk's Role and file a Summons with Detect or a Summons and Verified Complaint (which has the reasons for the divorce). Adjacent, you will demand to have another person over the age of 18 who is not a party to the action serve your spouse with the papers. For more than information on filing fees, completing and serving papers, placing your case on the court's calendar, and other procedures, please carefully follow the Uncontested Divorce Forms Package Instructions. You tin also use the DIY (Do-It-Yourself) Uncontested Divorce Plan if you are filing for an uncontested divorce, your matrimony has been over for at least 6 months, there are no children under 21, and all marital property issues, including debt, have been settled.
Exercise I need a lawyer to get divorced?
Because divorce constabulary can be complicated, you should see with a lawyer — fifty-fifty if you think your divorce will be uncontested. If yous and your spouse have resolved all financial and parenting issues, and you do not have a lawyer, you can use the free Uncontested Divorce Forms Parcel. You must first read the Uncontested Divorce Forms Parcel Instructions earlier trying to complete the process on your ain. You can as well use the DIY (Do-It-Yourself) Uncontested Divorce Program if y'all are filing for an uncontested divorce, your matrimony has been over for at least half-dozen months, in that location are no children under 21, and all marital property issues, including debt, have been settled.
If you have parenting or fiscal issues to work out, you may want to consider alternative dispute resolution (ADR) processes like divorce mediation or collaborative family law. These out-of-court processes frequently relieve time and money, reduce stress, and even ameliorate relationships between parents and their children later divorce. ADR may not be appropriate in cases involving domestic violence, kid abuse, or where one spouse cannot locate the other. [come across What if I cannot locate my spouse?]
What if I cannot locate my spouse?
New York state law requires that the defendant in a divorce activeness be personally served with the Summons with Notice or Summons and Verified Complaint. To accept your spouse served in any other way, y'all must go permission from the court. You tin apply for such permission past filing an application for alternate service with the Supreme Courtroom Clerk's Part in the canton where you filed your divorce case.
To commencement a divorce case, what legal requirements do I need to come across?
(1) Residency: Before a New York Court can requite you lot a divorce, you lot demand to show that yous and/or your spouse take lived in New York Land for a certain amount of fourth dimension, without suspension, by and large for one year. For more information on the residency requirement, see pp. 1-3 of the Uncontested Divorce Forms Packet Instructions.
(2) Grounds: You lot need to have grounds – a legally adequate reason – to get divorced in New York. That means that you need to show 1 of the grounds listed beneath:
• Cruel and Inhuman treatment
• Abandonment
• Confinement in prison for 3 or more consecutive years
• Adultery
• Living separate and autonomously pursuant to a separation judgment or decree
• Living separate and apart pursuant to a separation agreement
• Irretrievable breakup in the human relationship for a period of at least 6 months (for divorce proceedings started on/afterward Oct 12, 2010)
For more details on grounds, encounter pages iii-v of the Uncontested Divorce Forms Packet Instructions.
What is the difference between a Contested and an Uncontested Divorce?
UNCONTESTED: Your divorce volition be uncontested if both you and your spouse:
• Desire to become a divorce
• Agree about what volition happen with your children, your finances, your property after the divorce
If your divorce is uncontested, and you lot and your spouse accept reached understanding on all financial and parenting issues, you may use the Courtroom'due south costless Uncontested Divorce Forms Packet. You can too use the DIY (Practice-It-Yourself) Uncontested Divorce Program if you are filing for an uncontested divorce, your marriage has been over for at to the lowest degree six months, there are no children under 21, and all marital property issues, including debt, have been settled.
If you accept not reached agreement, and you call up you and your spouse could come to an agreement with some assistance, you might want to consider divorce arbitration or collaborative family unit law.
CONTESTED: Your divorce will be contested if either yous or your spouse:
• Do not desire to get a divorce
• Disagree about the grounds (legal reasons) for the divorce
• Disagree most what will happen with your children, your finances, your property after the divorce
Because the guess volition require detailed data to decide the bug you lot disagree about, your contested divorce will crave you and your spouse to go to the Supreme Court numerous times. If your divorce will be contested, y'all should seriously consider finding a lawyer to represent you.
You might desire to consider divorce mediation or collaborative family law.
What is a Statement of Internet Worth?
A Argument of Net Worth is a form required by the court where yous list all of your fiscal data in detail — income, expenses, assets, property and debts. It is a sworn statement that must exist signed in forepart of a notary public before information technology is submitted.
How can I get a divorce using a separation understanding?
A separation agreement is a written contract between a husband and wife that divides all the important aspects of the couple's lives: intendance and custody of children, money and property, and more than. The husband and wife must be living carve up and autonomously for a flow of at least one year afterwards signing a separation understanding to employ information technology for a divorce. Because these and many other technical requirements for the contract to be considered a legal separation agreement, it is difficult to go divorced using a separation agreement unless you have a lawyer. Collaborative lawyers or divorce mediators may besides be able to aid.
Where can my spouse and I get help to work out our differences outside of court?
If y'all and your spouse need help to work out parenting arrangements, you might want to consider divorce arbitration or collaborative family law. These out-of-court processes often save fourth dimension and coin, reduce stress, and even improve relationships betwixt parents and their children after divorce. These processes may non exist appropriate in cases involving domestic violence or child corruption.
What will the judge make up one's mind in my divorce case?
The main reason you lot commencement a divorce case is to end your marriage. But you tin also ask the judge to determine issues involving children, property and finances.
How practise I get certified copies of my divorce papers?
Copies of divorce judgments or other written orders in divorce cases can be obtained from the County Clerk, however, there is a fee for a "certified" copy. Copies of documents (other than the Judgment of Divorce itself) can merely be obtained by one of the parties or an chaser who is representing i of the parties. Divorce records are not open up to public inspection.
If you know you lot were divorced in New York some fourth dimension agone, but cannot call up in which county, contact the County Clerk of the canton where you were living at the fourth dimension of the divorce, or try the County Clerks of neighboring counties. If you are unsuccessful, you lot can as well try getting a divorce certificate from the New York State Department of Health, however, the Department of Health charges a fee for this service.
What types of cases that are related to divorce can exist heard in Family Court?
Although y'all cannot get a divorce in Family unit Court, Family Court judges hear cases involving kid abuse and neglect (child protection), adoption, child custody and visitation, support, domestic violence, guardianship, juvenile delinquency, paternity, and persons in demand of supervision (PINS).
In New York Country, a married person may file a petition in the Family Courtroom seeking spousal support from their hubby or wife. A divorced person cannot seek a new order of spousal back up in Family unit Courtroom — that would need to be done in Supreme Court. Notwithstanding, a divorced person can ask the Family Court to alter (alter) an already existing order of back up.
If parents are already involved in a divorce example in Supreme Court, a request for child support should exist fabricated in the Supreme Courtroom so that all the issues tin exist heard together.
What is custody?
Custody is a parent's legal right to control his or her child's upbringing. Information technology may also be referred to every bit parenting. A parent who does not have custody volition still probable be entitled to visitation, also known as spending fourth dimension with the child(ren). Both parents take a legal right to enquire for custody and visitation in a divorce proceeding.
What is the deviation betwixt legal custody and physical custody?
Custody has two parts: legal and concrete.
Legal custody: the correct to make major decisions most your child. This includes where your child goes to school, what kind of religious training a child receives, whether your child gets surgery.
Physical custody: who the child lives with on a day-to-day basis. A parent with principal physical custody is sometimes called the "custodial parent" or the kid'southward "chief caretaker."
How will a judge determine custody?
When determining custody and visitation, a approximate will consider what is in the best interests of the child(ren). Some factors a judge may consider include:
● who has been the kid's master caretaker
● the quality of each parent's home environment
● how "fit" the guess thinks each parent is (stable home and lifestyle, expert judgment, has a job, good mental and concrete health)
● which parent the child is living with now, and for how long
● each parent's power to provide emotional and intellectual support for the kid
● which parent allows the other parent into the kid'due south life (does not try to cutting out the other parent)
● if the kid is one-time enough, which parent the kid wants to alive with
● whether your child would be separated from any siblings
● whether either parent has been abusive
A judge must consider whether there has been domestic violence.
For more than detailed answers to oftentimes asked questions on custody, visit CourtHelp.
What is kid support?
New York law says that children are entitled to share in the income and standard of living of both parents. Child support is the money that the not-custodial parent pays to the custodial parent if the kid is under 21. Child support is based on a strict formula. See the Kid Support Standards Chart.
Kid support may be awarded past the Supreme Court equally office of a divorce, or in Family Court as role of a child support proceeding.
How does a court calculate child support?
First, the court determines each parent's cyberspace income. Net income is gross income minus sure deductions, such every bit FICA, NYC income tax, Yonkers income tax, spousal support and kid support paid for other kid(ren). Second, the court adds the parents' net income together and multiplies that number past a percentage, depending on how many children they accept:
- 17% for one child
- 25% for 2 children
- 29% for three children
- 31% for 4 children
- no less than 35% for 5 or more children
That amount is and so divided based on the proportion of each parent's internet income to the combined parental net income.
In addition to the basic child back up obligation, a spouse may also exist required to pay for child care expenses, educational expenses and medical expenses.
How to Calculate Child Support
What happens to property after a divorce?
During the divorce both spouses accept to tell the judge nearly their income and whatever debts they owe. When the court grants a divorce, property volition be divided equitably (though not always equally) between the spouses.
What is the Equitable Distribution Law?
New York's Equitable Distribution Law recognizes marriage as an economic as well as a social partnership. The law requires that a estimate divide holding as fairly as possible.
The Equitable Distribution Law talks most two types of holding for purposes of divorce: marital property and separate property. Marital holding volition be divided between the two spouses.
Marital Property: all property either spouse bought during the marriage, regardless of whose proper name is on the property. Pension plans and other retirement plans are considered marital property. The portion of marital property earned during the marriage will be divided past the court.
Separate Holding: property a spouse owned before the matrimony, or any inheritance or personal injury payments or gifts from someone other than the spouse during the marriage.
To see the factors a courtroom should consider in making an equitable distribution award, run across Domestic Relations Law § 236(B)(5)(d).
Can I go spousal maintenance (sometimes chosen "alimony") ?
Spousal maintenance (sometimes called alimony) is money an ex-spouse may be required to pay the other spouse after they get divorced. Temporary maintenance is money a spouse may exist required to pay the other spouse while the action is pending in contested actions only. A new law was passed in 2015 providing guidelines for both types of maintenance. For more than information, encounter
Maintenance Child Support Tools
What if I am a victim of domestic violence?
Please visit the court'south Domestic Violence web page for domestic violence data and resources.
If you or your children are the victims of Domestic Violence, yous tin can utilise to the court for an Club of Protection.
Where tin can I find out more information?
• Visit Supreme Court Web Sites: Even if you exercise not alive in these counties, the web sites in Bronx, Kings, and Queens Counties have helpful answers to Frequently Asked Questions
• Check out LawHelp.org for information on a wide range of topics tailored to your geographical area.
• Find a lawyer for a consultation on how the law affects your private circumstances and to go legal representation.
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Source: http://ww2.nycourts.gov/divorce/info_faqs.shtml
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