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COMMON DIVORCE QUESTIONS

What are the residency requirements for a New York Divorce?

Pursuant to the Domestic Relations Law of New York, an action to annul a marriage, or to declare the nullity of a void marriage, or for divorce or separation may be maintained only when:

1. The parties were married in the state and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or

2. The parties have resided in this state as husband and wife and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or

3. The cause occurred in the state and either party has been a resident thereof for a continuous period of at least one year immediately preceding the commencement of the action, or

4. The cause occurred in the state and both parties are residents thereof at the time of the commencement of the action, or

5. Either party has been a resident of the state for a continuous period of at least two years immediately preceding the commencement of the action.

How do you start an action for divorce or separation in New York?

An action for divorce, separation or annulment is started by filing a Summons with Notice or Summons and Complaint in the Supreme Court of the State of New York.  Thereafter, the Summons must be served personally on your spouse and an affidavit of service must be filed in court within 120 days after the Summons is served.

What happens after my spouse is served with the summons?

If you start the divorce action by filing and then serving a summons without a complaint, your spouse has 20 days to serve a "notice of appearance" upon you (or your attorney). This means that your spouse appears in the divorce action and you have 20 days to serve your verified complaint upon your spouse.  If they do not reply to the Summons, the defendant is in default and you may proceed with an uncontested divorce by default. 

If you start the divorce action by serving a summons and a verified complaint, your spouse has 20 days to serve his or her answer to your complaint. The Answer may also contain counterclaims against you. You have 20 days to reply to the counterclaim.  This means that you are involved in a contested divorce. 

What are the grounds for a New York divorce?

There are six grounds for divorce in New York State:
(1) Cruel and inhuman treatment;
(2) Abandonment for at least one year;
(3) Adultery;
(4) Imprisonment for three or more years;
(5) Living apart pursuant to a judicial separation for one year or more;
(6) Living apart pursuant to a written separation agreement for one year or more.

How long will it take to get divorced in New York?

A simple uncontested divorce can be processed by the Supreme Court of the State of New York within six to eight weeks. A complex contested divorce action, involving contested custody, support, valuation and property issues can take from one to three years.

I would like to go back to using my maiden name after my divorce. How do I go about it?
We provide this service as well.  For an additional fee, we will fill out all of the necessary paperwork and file all of the documents in court for you.


UNCONTESTED DIVORCE

What if I am not sure whether my spouse will contest the divorce?

We can start the process for you with a Summons with Notice.  If your spouse contests it, you are no longer seeking an uncontested divorce.  In that case, Keil & Siegel, L.L.P. will instruct you on the subsequent steps necessary to complete the divorce process.

What if my spouse will not sign the papers?

You can still get an uncontested divorce. Your spouse will be served with the papers and then after the 40 day New York State “waiting period” we will proceed with a divorce by default.

Do I need to appear in court?

NO! We can get it all done for you without even meeting you in person.

Will Keil & Siegel, LLP represent both me and my spouse?

We will only represent one party to the divorce. However, you can still obtain a divorce if only one party has an attorney and the other does not.

I don't know where my spouse is? Can I still file for a divorce?

Yes. The court can authorize service of the divorce action by substituted service if it is shown that the location of your spouse cannot be determined. Substituted service can include service on a member of your spouse's family or service by publication in a newspaper.  


CHILD SUPPORT/ CUSTODY

How and when is child support determined?

A custodial parent is entitled to child support in accordance with the Child Support Standards Act (CSSA). Child support is awarded by the courts so that a child has the financial support of both parents. It is paid by the non-custodial parent to the custodial parent. Yet, it may also be awarded in a joint custody case when one parent’s income is significantly higher than the other parent’s income, or when the child spends more time at one parent’s residence than the other's. Child support payments are to be paid until a child turns 18 or longer, if there are medical needs or educational needs which need to be addressed.

It is important to understand that joint custody does not necessarily result in an equal sharing of the child support burden, even when the parents equally divide their custodial time. The actual determination of child support based upon the statutory percentages is often treated like a simple calculation. However, the determination of what is or is not income, the opportunity to cap basic child support at a statutory $80,000 joint income level, and the division of add on expenses are often complex issues that require a careful analysis of each family situation.

What are the child support percentages pursuant to the CSSA?

Once arriving at the combined parental income (up to $80,000), the sum is multiplied by the appropriate "child support percentage." The "child support percentage" is defined as:

• 17% of the combined parental income for one child;
• 25% of the combined parental income for two children;
• 29% of the combined parental income for three children;
• 31% of the combined parental income for four children;
• No more than 35% of the combined parental income for five or more children.

A court will also consider “add-ons” for medical expenses, child care and education where applicable. 

How is child custody determined?

There is not single factor that is used to determine custody. The court reviews the overall facts and circumstances and determines what is in the best interests of the child(ren).  

Determining what is in the child's best interest requires that consideration be given to many factors, such as:
 

• The effect of a separation of siblings;
• The wishes of the child, if of sufficient age;
• The length of time the present custody arrangement has continued;
• Abduction or abandonment of the child or other defiance of legal process;
• The relative stability of the respective parents;
• The care and affection shown to the child by the parents;
• The atmosphere in the homes;
• The ability and availability of the parents;
• The morality of the parents;
• The prospective educational probabilities;
• The possible effect of a custodial change on the children;
• The financial standing of the parents; and
• The parents' past conduct.

What happens when one parent wants to move away from New York with a child?

If the parents cannot reach an agreement on relocation, the court will permit or deny a request to relocate based on the best interests of the child.

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