The decision to get a divorce is never easy. Anyone who is going through a separation or divorce is probably wondering about New York divorce laws and how their property will be divided. With the right legal representation, you can protect your rights throughout the divorce process and begin focusing on the next phase of your life.
New York Divorce Law Basics
New York is a no-fault state for divorce, meaning that either party may file for divorce if they believe that the marriage is no longer tenable. There is no requirement to find fault in the other spouse.
Unlike many states, there is no mandatory waiting period for divorce. After a divorce petition has been filed, the divorce can be finalized once both parties agree to the terms of the divorce.
Divorces are contested or uncontested. In a contested divorce, both parties are unable to come to an agreement on important matters like asset division and child custody. The courts require these and other important matters to be resolved before a judge will sign the Judgement of Divorce.
How Is Child Custody Handled?
If there are children from the marriage, both parents will have to agree on how they will co-parent following the divorce. When both parents cannot agree, a judge will make custody determinations based on the interest of the child or children.
Parents have rights to the legal and physical custody of biological or adopted children. Legal custody allows one or both parents to make important decisions pertaining to the welfare of their children.
Physical custody refers to where the children live. In most cases, the children will have a shared living situation where they spend some nights with one parent and some nights with the other. Not every parenting plan results in 50-50 shared time between parents, but the courts operate on the presumption that children benefit from spending meaningful time with both parents.
If one parent has a history of child endangerment, criminal activity, or other behaviors that could place the children in danger, the courts may consider those factors when awarding custody. When both parents agree on the terms of child custody, the courts generally honor those agreements.
Child support may be ordered when it serves the interest of the children. A judge may consider many factors, such as the earning capacity of both parents when considering whether child support is appropriate.
How Are Assets Divided in New York?
In New York, marital assets are divided according to the principles of equitable distribution during a divorce. This does not always mean a perfect 50-50 split.
During your divorce, both parties divide all assets and debts into one of two groups. Marital property is subject to division, while separate property is not.
Examples of separate property include any inheritance and gifts. Assets and debts that were acquired before the marriage are also considered separate. Once the marital estate has been classified as marital or separate, both parties can agree on how the estate is divided.
If both parties cannot agree on the terms of the division, the courts may advise or order mediation. Ultimately, a judge may make the decisions based on what is fairest to both parties.
FAQs
Q: What Is the Wife Entitled to in a Divorce in NY?
A: A wife is entitled to a fair and equitable share of the marital estate. During a divorce, one of the first steps involves dividing property, assets, and debts into marital and separate property. The courts make no preference between husband and wife in the division of an estate.
Dividing marital assets does not always mean a perfect 50-50 split. The courts may consider what is fair for both parties.
Q: Is Everything Split 50-50 in a Divorce in New York?
A: Not everything is split 50-50 in a divorce. Each case is unique, although the courts work to divide marital assets and debts in an equitable manner. In many cases, what is equitable means roughly half the estate goes to one party, and the other half goes to the other spouse.
When both spouses can come to an agreement over who receives what, the courts will generally honor those decisions. Even in a contested divorce, having the right attorney can ensure that you do not have to forfeit more than you are legally obligated to.
Q: Do I Have to Have an Attorney to Get a Divorce in New York?
A: You do not have to have an attorney when going through a divorce, but having legal representation comes with many advantages. If you and your soon-to-be ex have children together, you will want to protect your parental rights.
If your spouse is being unreasonable and demanding disproportionate access to your children, your attorney can work to protect your parental rights. The right to parent is a fundamental right that has been continuously upheld by the U.S. Supreme Court for more than a century.
Q: How Is Debt Split in a Divorce in New York?
A: Like marital assets, any debt that was acquired during a marriage belongs to both spouses. It does not matter to the courts which spouse acquired the debt as long as it is deemed to be marital debt.
Separate debt belongs outright to the spouse who created that debt. One example of separate debt would be any liability that was brought into the marriage. The courts generally view debts acquired after separation or the filing of a divorce to be separate debts.
Schedule Your Divorce Consultation Today
Even an uncontested divorce can be stressful and full of uncertainties. If you have concerns about protecting your parental rights and assets, a family law attorney can work to protect what matters most to you.
The attorneys at the Law Offices of Robert Tsigler, PLLC, understand how important your family and assets are to you. Many of our lawyers are also parents. We can tirelessly work and fight to protect your interests so you can finalize your divorce on favorable terms.
Don’t delay finding the legal representation you deserve. Contact our team today to schedule your consultation.
