How to file for divorce in NY

how to file ny divorce

Whether you are divorcing in New York City, Albany, Upstate, Long Island or elsewhere, there are some laws in New York state that affect your divorce. Other laws apply nationally.

Here is how to file for a divorce in New York, what you are entitled to, and what to expect:

What you are entitled to in a divorce in New York

New York is an equitable distribution state, which means that the marital property will be divided between spouses in a way that a judge considers fair — not necessarily 50-50. Factors include what each of you contributed during the divorce in terms of money earned, and care of any children, as well as what each of you needs to forward after the marriage.

This explains more about how property is divided after a divorce, but keep in mind that these rulings differ from one judge to the next, as well as how you and your husband or wife may negotiate outside of court — either between the two of you, if you go for a DIY divorce, or with attorneys or a mediator.

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Here are some of the items you must negotiate when dividing assets in your divorce:

Marital assets can include:

  • Cars
  • RVs
  • Houses and homes
  • Jewelry, watches and gold
  • Pensions and benefits
  • Investments, stocks, brokerage accounts
  • Checking and savings accounts (be sure to get an account in your own name, ASAP. CIT's Saving Builder offers 2.1% APR)
  • Retirement accounts
  • Clothing
  • Furniture
  • Businesses
  • Pets

Engagement ring, wedding jewelry and gold in a NY divorce

Your engagement ring and wedding rings are almost always considered a gift, and property of the recipient. Are you ready to sell your bridal jewelry? Worthy.com is an online auction site that has an A+ Better Business Bureau rating. Get a free estimate and GIA appraisal now >>

Worthy also buys anniversary and estate rings, necklaces, earrings watches and bracelets. Again, if you can show these items were gifts to you, you are free to sell them. If they were investments you made with your to-be-ex, then they may be considered marital property, and subject to property division laws.

If you have gold jewelry, gold coins or bullion, you can see how much they are worth with this online gold calculator from CashforGoldUSA. This site was found by Fox News to pay out three-times its competitors, and is a recommended site for selling unused gold and diamond jewelry, as well as silver, and other gold.

Other things to consider asking for in divorce include life, long-term care and disability insurance policies, ongoing therapy for the kids, and passports for the children.

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How marital debt is divided in a New York divorce

Are you responsible for your spouse's debt? Are you responsible for your husband or wife's debt if you are now separated? How is credit card debt split in a divorce?

The answer to these questions is: It depends.

New York courts consider martial debt similarly to marital property: Marital debt is that which is incurred during the marriage (though once you are legally separated, you are likely protected from any more debt that your spouse takes on — and vice versa). In an equitable property state like New York, debt is divided by what is fair — not 50/50.

So, if you took on student loan debt while you were married, you likely are responsible for most or all of that after the divorce. Likewise, if your spouse racked up credit-card bills partying with an affair partner, he will be held liable for that debt.

Marital debt can include:

  • Mortgages and home lines of equity
  • Student loan debt
  • Personal loans—including to family members or friends
  • Credit card debt
  • Tax debt
  • Auto loans
  • Business loans
  • Medical debt

Credit card debt can be shared in a divorce several ways, including each of you taking on responsibility for paying off a card, offsetting any debt against any assets (for example, if you are owed $50,000 from equity in a home, and your share of any debt is $20,000, you may take a $30,000 payout, and your spouse agrees to pay off your share of the $20,000 debt).

Be sure to take steps to protect your own credit during divorce, avoid bankruptcy, and, if you do have poor credit, take steps to increase or repair your credit score. TheCreditPeople is an affordable, reputable credit-repair app used by tens of thousands of people.

How retirement accounts are split in New York divorces

How long do you have to be married to get half of your spouse's retirement? Can I get half my husband's retirement in the divorce?

In short: you are likely entitled to a portion of your spouse's retirement account balances that were contributed to and any growth or loss accrued during the marriage.

When it comes to dividing up any 401(k), IRAs and other retirement accounts, most New York judges split 50/50 any balance that was accrued during the time of the marriage split.

Can I get half my husband's pension in a divorce?

This formula applies to your husband or wife's pension, which applies the equitable distribution formula which provides an ex-spouse with half of that part of a participant’s pension earned during the marriage.

Is military retirement marital property?

Yes, a military pension is treated the same as any other retirement plan. In order for the military to make direct retirement payments to an ex-spouse, the couple must have been married 10 years overlapping with 10 years of service.

In New York, the same formula used for 401k, IRAs and other retirement accounts applies to military pensions.

What is the alimony law in NY?

In New York, alimony typically temporary, wither designed to help a stay-at-home mom get on her feet financially, allow time for the lesser-earning spouse to increase their income, or compensate a wife or husband for helping the other spouse build a career.

Alimony in New York rarely lasts a lifetime. Alimony can last a few years, or up to 10 years.

New York alimony calculator

In New York, alimony is calculated when one spouse earns less than two-thirds of the other's spouse's income. This sum is calculated as such:

  • Subtract 20% of the lesser-earning spouse's income from 30% of the higher-earner's income.
  • For temporary support, a judge can order 40% of the two spouses' total income, minus the lesser earner's income.

NYS child support laws

In New York, non-custodial parents must pay child support until the child turns age 21 (not 18, as in other states). Child support in New York automatically ends when the child turns 18.

New York State child support is calculated based on the number of children and how much the higher-earning parent makes:

Number of Children%
117%
225%
329%
431%
5+at least 35%

These percentages are applied up to $148,000 of combined earnings by both parents, minus Medicare, FICA and NYC tax deductions. Child support paid to another parent, as well as alimony can also be deducted from the earnings.

After $148,000, the court can choose whether or not to use the percentage guidelines.

In New York child support calculations, earnings include worker's compensation, disability payments, unemployment insurance, social security, pensions, and many other forms of income.

For low-income New York State parents, there are exceptions:

  • If the noncustodial parent's income is below the Federal Poverty Level ($12,490 for 2019), the child support order will be set at $25 per month, and arrears will be capped at $500.
  • If the noncustodial parent’s income is below the New York State Self-Support Reserve ($16,682 for 2019), the child support will be set at $50 per month.

What are the child custody laws in NY?

In New York, if a child's parents, it is presumed both parents have legal and visitation rights to the child. A judge will determine what is “in the best interest of the child.”

Equal time sharing / equal custody is not the standard in New York. The child's primary caregiver is given special consideration to be the custodial parent.

In New York, if the parents were never married to one another, and paternity was never established, and never signed an “acknowledgment of paternity,” the father has no custody or visitation rights until he legally establishes paternity. This can include a voluntary acknowledgment by the mother, as well as genetic testing.

If the custodial parent refuses time sharing orders, refuses visitations, or otherwise denies a parent time with the child, that can be considered a crime, and jail time ordered. Likewise, if a non-custodial parent refuses to return a child from a visit, that parent can be arrested and charged with kidnapping.

If the custodial parent wants to move, he or she likely must get permission from a court.

Even the most amicable divorces are traumatic for the whole family. Therapy can help. If finances and time is tight, online therapy can be a great option. Online counseling apps like BetterHelp let you choose from thousands of licensed therapists who offer sessions by phone, text, email or video, for fees starting at $49/week unlimited. Check out BetterHelp >>

Is NY a 50/50 custody state?

Increasingly, states and some judges start with a presumption of equal sharing time. New York is not a 50/50 time sharing state.

[How to co-parent with your ex]

However, New York joins the rest of the country in that legal joint custody is presumed in most cases. This means that both parents equally share the rights to decisions for the children like where the child lives, education, religion, health and other major topics.

Exceptions that result in a judge awarding sole custody in New York can include where abuse, addiction, and mental illness.

What if I want no contact with the father?

Both parents have legal rights to their children, with rare exception, including in New York. This is true for custodial, and non-custodial parents.

Even if a mother wants no contact with the father, acknowledging paternity has important benefits for the child, such as financial or medical support, information about family medical history, and the possibility of sharing parental responsibilities.

New York Office of Child Support

How does shared custody work?

Many people assume that when parents live separately, time is split evenly between the parents. In New York, that is not presumed, and the default ruling of judges still tends towards the every-other-weekend, Wednesday night dinner schedule.

Throughout the country, the trend is shifting away from this traditional schedule, and to shared custody, or equally shared parenting, in which time between the parents is split approximately 50/50. Here is some research on why experts believe equally shared parenting is best for children.

How to get a divorce in New York

New York is known for its high number of attorneys who like to instigate high-conflict divorces. While this may be true, that is far from your only option. New York is a pioneer in mediated divorces, in which both spouses have an attorney, and there is also a third attorney — and all the lawyers commit to keeping the case out of court, and resolving fairly and as amicably as possible. This is usually a lower-cost option that going to trial.

If you hire an attorney, either your lawyer or your spouse's attorney will likely draft an agreement, which can then be filed as a binding divorce decree in the New York supreme court. Any future adjustments to child support or custody will be handled in New York family court.

Increasingly, couples choose to DIY divorce, by using a reputable online divorce tool, and filing either themselves online, or with the help of an attorney or program.

How to file for divorce in New York without a lawyer

If you have an uncontested divorce, in which there is not much disagreement, few assets, and no big argument over how time or custody of the children will be shared, and general agreement on co-parenting, you can likely file for divorce in NY without an attorney.

Two tools we recommend: RocketLawyer provides documents you need to file in your state for $39.99/month for unlimited documents, as well as $59.99 per 30-minute attorney consultation. Typical forms you will need include a separation agreement, divorce worksheet, and, finally, a divorce settlement agreement. Learn more with our RocketLawyer review.

CompleteCase offers a similar service for a flat $299 fee, which includes unlimited document creation, attorney consultation and filing in your state. Learn more with our CompleteCase review.

Here are the steps to take to get divorced in New York:

  1. Make sure you meet the residency requirement to file for divorce in New York state, which is that either you or your ex must have lived in New York for at least one year immediately before filing for divorce.
  2. Create, sign and have notarized a divorce settlement agreement. RocketLawyer has a settlement agreement template that you can work from, or, if you are working with an attorney or mediator, they can create one for you, based on what you and your spouse agree to.
  3. If you have no children under age 21 and your marriage has been over for at least 6 months, you can use the state's DIY Uncontested Divorce Program.
    If you do have children under age 21, use New York's paper Uncontested Divorce Packet.
  4. You must serve the person you want to divorce. Learn about Serving the Defendant in an Uncontested Divorce.
  5. After the papers have been signed and notarized, file the following with the County Clerk's Office. You may be able to file the papers over the internet using the New York State Courts Electronic Filing system.

How much does it cost to divorce in New York?

If you are filing an uncontested divorce in which you and your spouse created an agreement yourselves, without attorneys or a DIY program, it will costs at least $335 in total court and filing fees. This does not include the cost of a lawyer, photocopies, notary fees, transportation, mailing, process server fees, etc.

However, Lawyers.com surveyed its readers and found that the average New York divorce costs $17,100, including $13,500 in attorney’s fees —34% higher than the national average.

A hybrid approach of using a DIY program like RocketLawyer or CompleteCase, both of which include consultations with attorneys, can be a cost-saving approach that includes quality advice.

RocketLawyer has an attorney directory to help you find a family or divorce attorney near you.

[What it's like to be a single mom in NYC]

About Emma Johnson

Emma Johnson is an award-winning business journalist, noted blogger, and bestselling author. A former Associated Press Financial Wire reporter and MSN Money columnist, Emma has written for the New York Times, Wall Street Journal, Forbes, Glamour, Oprah.com, U.S. News, Parenting, USA Today and others. Her #1 bestseller, The Kickass Single Mom (Penguin), was named to the New York Post's ‘Must Read” list.Emma regularly comments on issues of modern families, gender equality, divorce, sex and motherhood for outlets like CNN, Headline News, New York Times, Wall Street Journal, Fox & Friends, CNBC, NPR, TIME, MONEY, O, The Oprah Magazine and The Doctors. She was named Parents magazine’s “Best of the Web,” “Top 15 Personal Finance Podcasts” by U.S. News, and a “Most Eligible New Yorker” by New York Observer.A popular speaker, Emma presented at the United Nations Summit for Gender Equality. Read more about Emma here.  Find out Emma's top Single Mom Resources here.

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