Recently, divorce seemed like something terrible, almost the end of life. Of course, this process cannot be called pleasant either, but no one will consider it the end of the world either. In the modern world, people are more comfortable making decisions about parting and divorce.
The legal process helps them in this. Regardless of whether the spouses only want to share property or completely dissolve all ties, they will have to deal with the legal procedure. Our article just describes this process in New York to help you go through all the steps in the most efficient way.
We will take a close look at the topic of the New York marital settlement agreement. This is a paper containing the decisions of the spouses about the division of obligations, custody of children, property, and more.
Laws Concerning Divorce and Separation in New York
The laws related to our topic are set out in Domestic Relations Consolidated Laws of New York in Articles 9 through 13. Below we present to you the main excerpts from these laws. Your agreement should be based on them.
Child Custody
The process is always more difficult when the pair has minor children. In this instance, the court decides on the custody of the children, guided by the principle of choosing the best conditions for the children, both emotional and material.
There are two types of custody: physical and legal. Physical means cohabitation with a child and material and physical care for them. Legal is about making key decisions and taking responsibility for the child.
There are various options for court decisions. Guardianship can remain with both parents, or the court can choose only one person. In this case, the second parent will be offered a schedule of visits to the child.
Property Division
Another serious and complex subject of the contract is the distribution of property. The New York Court applies to the principle of fair distribution for the division of property. The property is not distributed equally.
The choice is made based on many factors:
- Length of marriage
- The financial position of each party
- Income
- Employment Opportunities
- Property Contributions
These provisions are set out in § 236 of Article 13.
Child Support
Let's return to the "childish" issue. To decide on the amount of support for children, the court again considers certain factors. The income of each parent and the number of children born in marriage are taken into account. This model is called the income shares model.
These provisions are set out in § 240 of Article 13.
Alimony
In addition to supporting children, child support may be ordered from one spouse to another. A spouse with a better financial position can pay support to another based on the financial condition, age and health status, and tax implications. Other reasons can also be a careless waste of family property, actions that limit the ability to earn money, caring for children, missed opportunities, and others.
These provisions are set out in § 236 (Part B) of Article 13.
Grounds for Divorce
You need to have a reason for divorce to start the process in court. New York is not a no-fault state, so you will require to confirm that one of these reasons took place:
- Violence or abuse
- Adultery
- Leaving a family without warning for one year or more
- Imprisonment for three and more years
- Irretrievable marriage breakdown
- Division for at least one year
These provisions are set out in § 170 of Article 10.
Residency Law
To register for divorce in New York, the residency rule must be observed:
- At least one of the spouses must have resided in New York for at least one year (before application), or
- If the pair did not live together in the state or were not married there, then although one of the spouses must become a resident of New York at least two years before applying.
Legal Separation
This process is an alternative to divorce. To complete it, you need to go through all the same stages, but at the same time, you will be officially still married. This can be a good option when the spouses are not 100% sure of their decision but tend to separate. This can become a starting point not only in the final divorce but also in the rapprochement after separation.
You still won't be able to remarry, but you will retain the family benefits of health insurance, social security, and better family taxation. But at the same time, you will be able to live independently and not divide your property.
Duration
If you are using legal separation as a basis for divorce, then you need to adhere to it for at least one year. If you made this decision for other purposes, then you can stick to this situation for as long as you both want it.
Advantages and Disadvantages of Legal Separation
The choice depends on each specific situation. It is essential to weigh the pros and cons before making such an important decision.
Advantages:
- This can act as grounds for divorce.
- You have a quiet time to decide whether to divorce or get back together.
- Good opportunity to get independent advice on marriage issues.
- The time spent separately will be counted as time in marriage, which will affect the spouse's retirement benefits.
- Does not violate religious precepts.
- Bonuses remain in the form of joint health insurance.
Disadvantages:
- You are still officially married
- You cannot remarry
- If the relationships are bad, it will be more difficult to conclude an agreement.
- The agreement must be signed by both parties.
- Material, technical and financial relations remain within the couple.
- You should not turn to this option if there were acts of violence or threats.
- If your goal is to file for divorce, you will have to wait at least a year.
Remember, these are just points for reasoning. It is strongly recommended to seek independent advice from the local family attorney before making a decision.
How to Divorce After Completing Legal Separation?
If you agree that the terms of your divorce are identical to those in the separation agreement, then you need to apply for a conversion divorce. This is a type of divorce based on pre-existing agreements between the couple, set out in a written agreement.
You apply and ask the judge to include all the conditions in your divorce conclusion. The judge reviews the situation and makes decisions. If you have had an attorney who helped you draft the agreement, it is best to contact them again for a court case.
How to File for Divorce in New York?
First of all, you should collect the documents. The procedure will be slightly different for those with and without children. The duration of the process also depends on the complexity of each specific case. On average, everything takes no more than three months.
1. Submit the FormsThe set of forms depends on whether it is a contested or uncontested divorce. The second option is simpler and requires less time and money. It is possible when the spouses have come to a common decision and made an agreement.
To start divorce proceedings, you need a file a Summons with Notice or Summons and Complaint with the County Clerk's Office. In some courts, the plaintiff can file the papers over the internet using NYSCEF, the New York State Courts Electronic Filing system. You should check the e-filing County List first.
2. Contact the RespondentAfter that, you need to officially notify the other party about the process. To do this, you need to send to the respondent:
- The Summons
- An Affidavit of Defendant
- And other notices on a case-by-case basis
If the respondent signs Affidavit, then the process will be much easier and faster, as this will mean the assignment of the status of uncontested divorce.
If the signing did not take place, then the plaintiff can send all the papers again, but through a third party. If the papers are not signed within 40 days, then the divorce will be more difficult, as it acquires the status of contested.
3. Do a Final PaperworkThe state court gives time to collect the final package of documents. In addition, there will be a fee of approximately § 125 depending on the County.
4. Attend the HearingThe court will hold a hearing, at which all documents will be reviewed again, and a decision will be made (if there are no additional questions). The signing by the court of the Judgment of Divorce form will mean that the marriage is officially terminated.
