New York imposes a two year residency period if only one spouse lives in New York at the time of filing. A one year period is imposed if: (1) the marriage took place in NY and one spouse is still a resident; or (2) both spouses resided in NY and one spouse is still a resident; or (3) grounds for divorce arose in NY. No minimum time limit is required if the spouses are both residents and the grounds arose in NY.
You must use one of these reasons in order to get a divorce in New York.
living separate and apart for one year under the provision of a written signed and notarized separation agreement (we can prepare one of these for you and your spouse);
living separate and apart under the terms of a judicial separation decree (Legal Separation- obtained by a special proceeding in court- we do not prepare the forms for this type of legal separation).
The following are the other grounds for divorce. Note that they require one party to be at fault:
adultery; (rarely used these days)
abandonment for one year; (frequently used)
cruel and inhuman treatment; (frequently used)
imprisonment for three years or more.
Note: The court shall order any custody arrangement which is agreed to by both parents unless it is contrary to the best interests of the child.
Unless the parties agree to custody the court determines Custody by what is in the "best interest of the child." This may not be in the interest of either parent. In doing so the court considers many factors. Domestic violence is a significant factor.
Factors to be considered are:
who is the primary caretaker of the child,
who is the more fit parent,
what is the nurturing ability of the parents,
who has better judgment,
the desirability of keeping siblings together,
the wishes of the child, if of sufficient age,
the parents' lifestyles,
the parents' religion,
whether a parent will encourage or discourage visitation,
continuity of a stable environment,
the age of the child,
substance abuse or chemical addiction of a parent,
the quality of each parents' home environment,
the parental guidance each parent provides for the child,
the ability of each parent to provide for the child's emotional and intellectual development,
the financial status and ability of each parent to provide for the child,
the relative fitness of the respective parents including their mental condition,
the length of time the present custody arrangement has been in effect.
A parents' sexual behavior, character or lifestyle is not a factor unless it directly affects the child.
New York is very strict on applying the child support guidelines in basically every case. If you desire to pay a different amount you must provide an affidavit explaining the reason for deviating. The child support calculation takes into consideration the gross income of both parties, and certain child related expenses. Typically the paying spouse will contribute 17% of his or her income for one child, 25% for two children and 31% for more children. Child support will continue until the child reaches the age of majority, and may be extended through his or her secondary education.
In New York there is no court appearance required so you case is generally over upon submission of the completed divorce form package to the court.
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