How to file for divorce in NY

Some links below are from our sponsors. Here's how we make money.
As a BetterHelp affiliate, I may receive compensation from BetterHelp or other sources if you purchase products or services through the links provided on this page.

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.

Understand more about how much money you will need to live, and reach your goals like starting a business, go back to school, send the kids to college, or retire.

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 Bank's Money Market Account offers a high 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, and accepts items that will sell for $1,000 or more. Get a free estimate and GIA appraisal now >>

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 has an A+ BBB rating, 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. CashforGoldUSA pays within 24 hours.

Both sites also buy 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.

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.

Don't have life insurance. Bestow offers policies starting at $8 per month and guaranteed no medical or lab exam. Check out Bestow life insurance now >>

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, and costs just $9 to get started >>

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.

This can be especially interesting to high-earning moms, as women still are more likely to be awarded primary and sole custody, as well as majority of time-sharing by family court judges. In New York, the minority time parent pays child support, no matter the gender.

How to deal if you are a woman who pays child support or alimony

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 $35/week. Financial assistance available. Use this link to get 10% off and get connected with a therapist immediately >>

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.

One of the first co-parenting apps, and widely used app, OurFamilyWizard, which features chat, information storage (like pediatrician and teacher contact info, prescriptions, etc.), and financial record-keeping. 30-day free trial, discounts for military families, and a program to provide OurFamilyWizard free to low-income families. Each parent can add unlimited numbers of other people for free, including children, grandparents, step and bonus parents, as well as attorneys.

Try OurFamilyWizard for free for 30 days now >>

Read OurFamilyWizard review on Wealthysinglemommy.com >>

How to find the best divorce lawyer in NYC and get a divorce

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 collaborative 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 than going to trial.

To find the right New York attorney for you:

  • Ask around. A personal recommendation from someone you trust is a great way to start.
  • Google ‘divorce lawyers near me.' Read the testimonials, reviews and statements from the attorneys themselves to get a sense of their style and success rates.
  • Aim for low-conflict. Divorce attorneys who also serve as mediators or are trained in collaborative divorce are likely to practice in the spirit of amicable and positive long-term outcomes for their clients (opposed to high-drama, profitable cases for themselves).
  • Shop around. Most New York divorce attorneys will give you 15 or 30 minutes of time on the phone. Use this to educate yourself about the divorce process, get some free advice, and get a sense of whether the attorney is a fit.
  • Be sure to nail down whether the partner, or an associate will actually manage your case.

Separation and divorce agreements for New York

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.

New York separation agreement

The New York divorce process is notoriously long, so many couples choose to create a separation agreement to adhere to while they are finalizing the actual divorce. Some couples choose to create this as a working contract while they are deciding whether to actually divorce, or until they can afford to divorce. Some choose to stay separated while living completely independent lives for financial reasons such as the continuation of health insurance or tax advantages.

New York marital settlement agreement / divorce settlement agreement

Separation agreements are typically the basis of the final divorce agreement or settlement. Such an agreement will likely include:

  • Custody and time sharing for children
  • Child support
  • Alimony
  • Who is responsible for which bills
  • Division of taxes, debts and assets, including real estate, savings and investment accounts

New York child custody and co-parenting agreement

Your child custody agreement will address:

  • Time sharing
  • Legal custody
  • Child support
  • Who pays for health insurance
  • Sharing of expenses like medical, dental, vision, extracurricular and school
  • Name changes
  • First rights of refusal
  • Distance one parent can move from the other
  • Who is responsible for transportation for pickup/dropoff
  • Sharing of holidays, birthdays and vacations
  • Speaking ill of the other parent / parental alienation

New York’s seven grounds for divorce

In order to file for divorce in New York State, you must first ensure that you meet one of the seven grounds that the states recognize as acceptable reasons to grant a divorce: Irretrievable breakdown, cruel and inhuman treatment, abandonment, imprisonment, adultery, divorce after a judgment of separation, or divorce after a separation agreement. 

Irretrievable breakdown

Also called a no-fault divorce, irretrievable breakdown refers to a breakdown in your relationship lasting for at least 6 months that does not hold any hope of being repaired. In order to qualify for a divorce under this ground, you must first settle all relevant issues, including:

  • Debts
  • Division of marital property
  • Child custody & visitation
  • Child support

Cruel and inhuman treatment

If during the last five years your spouse has engaged in cruel acts, a court may grant you a divorce under these grounds. In this context, “cruel acts” refers to physical, mental, or emotional abuse which put your safety and wellbeing at risk if you continue living with your spouse. 

Abandonment

If your spouse has abandoned you for a period of at least one year, you may file for divorce under this ground. Abandonment may refer to:

  • Your spouse leaving you and your home for at least one year
  • Your spouse kicking you out of your home for at least one year
  • Your spouse refusing to have sex with you for at least one year (called “constructive abandonment”)

Imprisonment

If, after you were married, your spouse was put in prison for at least three consecutive years, you may qualify for divorce under this ground. You can file for divorce under this ground while your spouse is in prison, or up to five years after their release.

Adultery

If your spouse committed adultery, you may qualify for divorce under this ground. That being said, it can be difficult to prove adultery without evidence. Additionally, if you commit adultery yourself or “forgive” your spouse by having sex with them after you have learned of the adultery, you may be disqualified from this ground.

Separation agreement

A separation agreement is a legal document drafted by the married couple (or their lawyers) which must be signed and notarized. The married couple must then live apart for at least one year, at which point they will qualify for this ground.

Judgment of separation

This is similar to the above, only instead of being voluntarily drafted by the parties involved, the separation agreement is drafted by the courts. The married couple must then live apart for at least one year in order to qualify for divorce under this grounds. 

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.

3 Step Divorce provides all the legal documents you need for a divorce in your state, detailed instructions for filling them out and filing them online, for a total fee of $299. You can also store your documents online, share them with your spouse or an attorney (for final review). More about 3StepDivorce, or read our 3StepDivorce review:

  • A+ BBB rating
  • 100% money-back guarantee your papers will be accepted by your local court
  • Online and live phone customer service 24/7
  • Divorce papers for all 50 states
  • Get started for $84
  • Established in 1997

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 long does it take to get a divorce in New York?

Ultimately, how long it takes to get a divorce in New York will depend on a number of factors, including:

  • Whether the divorce is contested or uncontested, with uncontested divorces moving forward more quickly than contested divorces
  • Which county you reside within, as this may impact the resources available to the court
  • The court’s current schedule, as a packed calendar can result in a lengthier proceeding

That being said, many uncontested divorces can be resolved within an average of three to six months. 

Can you file online for divorce in New York?

Yes, you can use the New York State Courts’ e-filing stsnet (NYSCEF) to file your finished divorce papers online. 

How do you file for an uncontested divorce in New York? 

If you and your spouse agree that you both want a divorce and are in agreement over specifics (debts, property, child custody and support, etc.) then you may file for an uncontested divorce. To do so, you must meet New York State residency requirements and qualify for one of the grounds for divorce outlined above. The process typically follows these steps:

  1. The plaintiff files for divorce
  2. The defendant is served with legal documents and notified of the divorce case
  3. The defendant signs and returns the affidavit, resulting in an uncontested divorce
  4. The case is calendared
  5. The case is decided by the court

If in step three above the defendant files a Notice of Appearance, then the divorce is contested and you may need to hire a lawyer to argue your case. If the defendant does not return the affidavit or file a Notice of Appearance, then they will have defaulted, resulting in an uncontested divorce.

What is a conversion divorce?

A conversion divorce refers to the act of converting an agreement or judgment of separation into a divorce. This is often one of the quickest and easiest means of qualifying for a divorce in New York State. 

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.

How much does an online divorce in NY cost?

If you're looking for a cheap divorce in New York, a hybrid approach of using a DIY program like RocketLawyer or 3StepDivorce, 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]

[How to file for divorce in Texas]

Wealthysinglemommy.com founder Emma Johnson is an award-winning business journalist, activist and author. A former Associated Press reporter and MSN Money columnist, Emma has appeared on CNBC, New York Times, Wall Street Journal, NPR, TIME, The Doctors, MONEY, O, The Oprah Magazine. Winner of Parents magazine’s “Best of the Web” and a New York Observer “Most Eligible New Yorker," her #1 bestseller, The Kickass Single Mom (Penguin), was a New York Post Must Read. A popular speaker, Emma presented at the United Nations Summit for Gender Equality. Emma's Top Single Mom Resources.

Leave a Reply

Your email address will not be published. Required fields are marked *