New York divorce: Tips on property division and child custody issues

A divorce is difficult, but having a basic understanding of state law can help.

Getting a divorce is difficult for everyone involved. Many people find that having an understanding of how the process works eases some of the stress inherent to the situation. This article is designed to provide some basic information on the divorce process in New York.

Divorce basics: Grounds for divorce

In most cases, New York state law requires at least one spouse to have lived in the state for approximately one year in order to move forward with a divorce.

In addition, the New York State Unified Court System notes that the state recognizes the following grounds for divorce:

  • Cruel treatment
  • Abandonment
  • Adultery
  • Confinement in prison for three or more consecutive years
  • Irretrievable breakdown of the relationship for at least six months

The state defines an irretrievable breakdown as a relationship that cannot be repaired. Instances where a divorcing couple can develop an agreement addressing all aspects of the divorce are termed uncontested divorces. In contrast, contested divorces are those between couples that disagree about the grounds for the divorce or the legal issues that must be addressed. Couples that find themselves in a contested divorce can face a variety of issues, but two of the most prevalent include property division and child custody.

Divorce issues: Property division

New York uses the legal theory of equitable division when dividing property in a divorce. It is important to note that "equitable" does not translate to "equal." Instead, the court is to split the marital property in a manner that it deems fair. Marital property is any property that is acquired during the marriage. This includes bank accounts, real estate, business interests and retirement accounts.

In most cases, retirement accounts require additional paperwork to ensure the payouts are split in accordance with the divorce agreement. The final divorce order is often not enough to ensure retirement accounts are split at the time the ex-spouse wishes to receive benefits. A Qualified Domestic Relations Order, or QDRO, is a court order that governs the distribution of retirement assets.

Divorce issues: Child custody

Judges in New York take the child's best interest into consideration when making custody determinations. The judge considers a variety of factors when making this determination, including:

  • Current living arrangements. The judge will review which parent the child is currently living with and which parent has taken the role of primary caregiver.
  • Fitness. The judge will also attempt to determine which parent is more "fit" to raise the child. This could include a review of the parent's lifestyle, home and employment as well as mental and physical health.
  • Involvement. A parent's history not only of being involved in the child's life, but also of allowing the other parent to remain involved in the child's life will be taken into consideration.

A judge will also review any potential for child support payments. Child support payments are made by the noncustodial parent to the parent raising the child. These payments are determined using a strict formula.

Divorce in New York: Legal counsel can help

These are just a few of the issues that can arise when going through a divorce. As a result, those going through a divorce are wise to seek the counsel of an experienced divorce lawyer. This legal professional will guide you through the process, advocating for your rights and working to better ensure a more favorable outcome.