FAQ

Frequently Asked Questions About Divorce

Frequently Asked Questions

What is a divorce?

Divorce is the final, legal ending of a marriage by court order. If you have a divorce case in court, you may hear lawyers and court staff call it a matrimonial action. The person who starts the divorce is called the plaintiff, and the other spouse is called the defendant.

Where do I go to for a divorce?

The Supreme Court of the State of New York is the only court that handles divorce cases, and a Supreme Court judge is the only 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 get a divorce in Family Court. Although Family Court cannot give you a divorce, you can go to your local Family Court for help with child support, child custody, child visitation, spousal support (also known as spousal maintenance), and paternity.

What is an annulment?

Unlike a divorce that ends a valid marriage, an annulment establishes that the marriage is not legally valid, and the grounds for annulment are different from a divorce.

To get an annulment, you will need to prove ONE of the following:

Bigamy: one of the parties was still 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 18, if the spouse under 18 wants the annulment. The annulment will not be granted if the person under 18 freely cohabited (had sexual relations) with the other spouse after turning 18.

Accurate valuation of assets and liabilities.

Spouse is unable to understand the nature, effect and consequences of marriage because of mental incapacity.

Spouse agreed to marry as a result of force or duress by the other.

Fraud (most common ground): the consent to marry was obtained by fraud that would have deceived an ordinarily prudent person and was material to obtaining the other party’s consent. The fraud must go to the essence of the marriage contract. Concealment of a material fact may constitute fraud. Sexual intercourse evidencing forgiveness is an absolute defense.

To learn about religious annulment, you should consult the religious faith that performed the marriage.

Annulment is defined in Domestic Relations Law §140. If you would like an annulment, you should seriously consider speaking to a lawyer. The court does not provide forms for annulment.

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Do I need a lawyer to get divorced?

Because divorce law can be complicated, you should meet with a lawyer — even if you think your divorce will be uncontested.

If you have parenting or financial 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 often save time and money, reduce stress, and even improve relationships between parents and their children after divorce. ADR may not be appropriate in cases involving domestic violence, child abuse, or where one spouse cannot locate the other.

What if I cannot locate my spouse?

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. Our office will help you, just call us today.

What is the difference between a Contested and an Uncontested Divorce?

UNCONTESTED: Your divorce will be uncontested if both you and your spouse:
-Want to get a divorce
-Agree about what will happen with your children, your finances, your property after the divorce

If your divorce is uncontested, and you and your spouse have reached agreement on all financial and parenting issues.

If you have not reached an agreement, and you think you and your spouse could come to an agreement with some help, you might want to consider divorce mediation or collaborative family law.

CONTESTED: Your divorce will be contested if either you or your spouse:

-Do not want to get a divorce

-Disagree about the grounds (legal reasons) for the divorce

-Disagree about what will happen with your children, your finances, your property after the divorce

Because the judge will require detailed information to decide the issues you disagree about, your contested divorce will require you and your spouse to go to the Supreme Court numerous times. If your divorce will be contested, you should seriously consider finding a lawyer to represent you.

What is a Statement of Net Worth?

A Statement of Net Worth is a form required by the court where you list all of your financial information in detail — income, expenses, assets, property and debts. It is a sworn statement that must be signed in front of a notary public before it is submitted.

How can I get a divorce using a separation agreement?

A separation agreement is a written contract between a husband and wife that divides all the important aspects of the couple’s lives: care and custody of children, money and property, and more. The husband and wife must be living separate and apart for a period of at least one year after signing a separation agreement to use it for a divorce. Because these and many other technical requirements for the contract to be considered a legal separation agreement, it is difficult to get divorced using a separation agreement unless you have a lawyer. Collaborative lawyers or divorce mediators may also be able to help.

What types of cases that are related to divorce can be heard in Family Court?

Although you cannot get a divorce in Family Court, Family Court judges hear cases involving child abuse and neglect (child protection), adoption, child custody and visitation, support, domestic violence, guardianship, juvenile delinquency, paternity, and persons in need of supervision (PINS).

In New York State, a married person may file a petition in the Family Court seeking spousal support from their husband or wife. A divorced person cannot seek a new order of spousal support in Family Court — that would need to be done in Supreme Court. However, a divorced person can ask the Family Court to modify (change) an already existing order of support.

If parents are already involved in a divorce case in Supreme Court, a request for child support should be made in the Supreme Court so that all the issues can be heard together.

What is custody?

Custody is a parent’s legal right to control his or her child’s upbringing. It may also be referred to as parenting. A parent who does not have custody will still likely be entitled to visitation, also known as spending time with the child(ren). Both parents have a legal right to ask for custody and visitation in a divorce proceeding.

What is the difference between legal custody and physical custody?

Custody has two parts: legal and physical.

Legal custody: the right to make major decisions about 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 primary physical custody is sometimes called the “custodial parent” or the child’s “primary caretaker.”

How will a judge decide custody?

When determining custody and visitation, a judge will consider what is in the best interests of the child(ren).

Some factors a judge may consider include:

Who has been the child’s primary caretaker

How “fit” the judge thinks each parent is (stable home and lifestyle, good judgment, has a job, good mental and physical health)

Which parent the child is living with now, and for how long

Each parent’s ability to provide emotional and intellectual support for the child

Which parent allows the other parent into the child’s life (does not try to cut out the other parent).

If the child is old enough, which parent the child wants to live 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.

What is child 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 non-custodial parent pays to the custodial parent if the child is under 21. Child support is based on a strict formula. Child support may be awarded by the Supreme Court as part of a divorce, or in Family Court as part of a child support proceeding.

How does a court calculate child support?

First, the court determines each parent’s net income. Net income is gross income minus certain deductions, such as FICA, NYC income tax, Yonkers income tax, spousal support and child support paid for other child(ren). Second, the court adds the parents’ net income together and multiplies that number by a percentage, depending on how many children they have:

-17% for one child

-25% for two children

-29% for three children

-31% for four children

-no less than 35% for five or more children

That amount is then divided based on the proportion of each parent’s net income to the combined parental net income.

In addition to the basic child support obligation, a spouse may also be required to pay for child care expenses, educational expenses and medical expenses.

What happens to property after a divorce?

During the divorce both spouses have to tell the judge about their income and any debts they owe. When the court grants a divorce, property will 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 judge divide property as fairly as possible.

The Equitable Distribution Law talks about two types of property for purposes of divorce: marital property and separate property. Marital property will be divided between the two spouses.

Marital Property: all property either spouse bought during the marriage, regardless of whose 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 by the court.

Separate Property: property a spouse owned before the marriage, or any inheritance or personal injury payments or gifts from someone other than the spouse during the marriage.

To see the factors a court should consider in making an equitable distribution award, see Domestic Relations Law § 236(B)(5)(d).

Can I get spousal maintenance (sometimes called “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 be 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.

Courtesy: NYCourts.Gov