In order to file for divorce in New York, at least one of the parties must meet the residency requirement and have lived in the state for at least one year. Legal grounds for divorce in New York include:
• Cruel and inhumane treatment
• Imprisonment of either spouse
• Abandonment for at least one year by either spouse
• Living separate and apart for at least one year.
New York is an equitable distribution state, which means that all marital property is divided. This does not mean that property is divided in half if the court determines that is not equitable. The court usually allows separate property that was acquired before the marriage to remain with the original owner. Separate property may include inheritances, gifts, or purchased property.
Alimony may be granted to either spouse. The court considers many factors when determining alimony, including: the duration of the marriage and the standard of living established; the contribution of both parties to the marriage, including contributions as a homemaker; whether the party seeking support sacrificed their own career for the advancement of their spouse’s career; the financial resources of both parties, including the ability of the party seeking support to find employment; and the present and future earning capabilities of both parties.
Either parent may be granted child custody of minor children in a sole or joint capacity. Physical custody describes where the child lives; legal custody gives the parents the right to make informed decisions about the child’s upbringing. Visitations rights may be awarded to the non-custodial parent. Child support is calculated using an Income Shares Model. Other factors include: the income resources of both parents – adjustments may be made if one parent has a significantly higher income than the other; the financial needs of the child, including any special health or educational needs; and other financial obligations of the parents.
A premarital agreement will usually be honored if the court finds that it was legally constructed and signed voluntarily by both parties. Premarital agreements usually address issues with property division and spousal support. After a divorce is final, either party is free to return to a former surname.