Nassau County Family Law Attorneys

Filing for Divorce in New York

To get a divorce in the State of New York you must meet one of the following residency requirements:

• you were married in New York and either spouse has lived in the state for at least 1 year;
• you lived in New York as a married couple and either spouse has lived in the state for at least 1 year;
• the grounds for your divorce arose in New York and either spouse has lived in the state for at least 1 year at the time of filing; or
• either spouse has lived in the state for at least 2 years.

Your divorce petition can be based on either no-fault or fault grounds. No-fault divorce is for spouses who have been separated for at least 1 year or if there has been an “irretrievable breakdown of the marriage” for 6 months or more. Otherwise, if one spouse is to blame for the breakdown of the marriage, the spouse petitioning for divorce may cite one of the following fault grounds as reasons for the divorce:

• cruelty (e.g., mental or physical abuse);
• abandonment for 1 or more years;
• imprisonment for 3 or more years; and
• adultery.

Child Custody Decisions

If you have children in the marriage, child custody will be an important part of the divorce discussion. Parents can either have sole or shared physical or legal custody, where physical custody refers to where the child will live, and legal custody is a parent’s legal authority to make decisions on behalf of the child. Under New York law, the parent who has less physical custody with the child (noncustodial parent) may exercise their visitation rights to spend time with the child based on a regularly occurring schedule.

Parents may either negotiate a custody and visitation agreement on their own, or they will have to go to court if they cannot reach an agreement. When deciding custody, the judge will rule primarily in the child’s best interests, which includes factors like:

• each parent's relationship with the child;
• the child's relationship with siblings and extended family members;
• the child's ties to school, home, and the community;
• each parent's role in caring for the child;
• the child's special needs (if applicable);
• each parent's age and physical and mental health;
• the parents' geographical proximity (for joint custody arrangements);
• each parent's stability;
• each parent's willingness to foster a relationship between the child and the other parent;
• either parent's history of domestic abuse; and
• any other factor relevant to the child's wellbeing.

Asset and Debt Division

Another important divorce dispute that you will need to resolve is the division of your assets and debts. Recall that New York is an equitable distribution state, which means the court will divide marital (community) property between spouses in a way that is equitable or fair, not exactly 50/50 down the middle. 

Note that judges can only divide marital property – property that was acquired or earned during the marriage. Separate property, or property you owned before marriage or received as a gift, inheritance, or personal injury award during the marriage, is not subject to division. Some examples of property that may be divided include retirement accounts both spouses contributed to, the family home, rental properties, and debt accumulated over the marriage.

To determine the distribution arrangement, the court will examine the following factors:

• each spouse's income and property at the time of the marriage and at the time of the divorce;
• the length of the marriage;
• each spouse's age, health, income, potential earnings, or future financial circumstances and property;
• the need of a custodial parent to occupy or own the marital home (if you have children);
• whether either spouse receives spousal maintenance; and
• either spouse's contributions as a homemaker during the marriage.

A spouse’s fault for the marriage is not a formal factor for determining the distribution of property, but a judge may consider a spouse’s fault for the divorce and can award them less of the marital property if they wasted marital assets during the marriage.

Family law encompasses a range of legal issues, from divorce to child custody to property division, among other legal issues. If you are dealing with a family law dispute in Nassau County, don’t go through it alone; let Ladis & Baldwin Law Group help. We will do our best to preserve your interests and advocate for a favorable outcome for you and your children.

Contact our firm online to get started on your family law case in a free consultation.