Divorce

A: New York recognizes both “no-fault” and “fault-based” grounds for divorce. The most common no-fault ground is an irretrievable breakdown (sometimes called “irreconcilable differences” in other states) of the marriage for at least six months. This means the marriage can’t be fixed, and one spouse is willing to swear under oath that the relationship is beyond repair. Fault-based grounds include cruel and inhuman treatment, abandonment for a year or more, adultery, and imprisonment for three or more consecutive years.

A: An uncontested divorce occurs when both spouses agree on all the legal issues and neither spouse challenges the divorce itself. These cases tend to move faster and cost less. The parties can typically avoid court appearances beyond filing paperwork and receiving final approval.

A contested divorce happens when spouses disagree on one or more issues. This may involve disputes over finances, parenting time, or who stays in the marital home. Contested divorces may require court conferences or a trial. Most contested divorces involve negotiation through attorneys or mediation. Even if your divorce starts out contested, you can still resolve your disagreements and reach a settlement before trial.

A: No, New York is not a community property state. Instead, the courts divide property equitably. Equitable distribution means the court will divide marital property fairly, though not necessarily equally.

Marital property includes most assets and debts acquired during the marriage, regardless of who’s on the title. Separate property is property like inheritances, gifts from third parties, or anything you owned before the marriage. Separate property is usually not divided.

So, what’s “fair” in the eyes of the law? Courts consider factors like income, age, health, and the length of the marriage when dividing assets.

A: A prenuptial agreement (signed before marriage) or a postnuptial agreement (signed during the marriage) shapes how property is divided. They can also determine whether one spouse pays maintenance after divorce. These agreements are enforceable in New York as long as they meet certain legal requirements.

If a valid agreement exists, the court will typically honor it unless there’s a good reason not to. For example, agreements signed under pressure, containing false financial information, or which are extremely one-sided, may not be valid.

Note that pre- and postnuptial agreements can’t predetermine child custody or child support. Those determinations must meet the child’s best interests and follow New York’s guidelines.

A: Custody decisions in New York are based on what’s in the best interests of the child. There are two parts to custody: legal custody (who makes major decisions about the child’s life) and physical custody (where the child lives most of the time). These can be shared between both parents or granted to just one, depending on the situation.

When possible, judges encourage shared parenting arrangements that support both parents staying involved in the child’s life. Courts will consider each parent’s involvement, their home environment, and any history of domestic violence or substance abuse. Depending on the child’s age and maturity level, they may also take the child’s preferences into account.

You don’t have to hire a lawyer to get divorced in New York. You can represent yourself. However, even in simple divorces, there are legal forms, court procedures, and deadlines that can be difficult to manage on your own.

If your divorce involves property, debt, children, or the possibility of alimony, working with a lawyer can help you avoid costly mistakes. An attorney from The Law Offices of Gildin & Chapman can help you reach a fair agreement and represent you in court.