Continue... Page 2 Divorce Laws: New York

New York Gov, Feb 02, 2005

SIMPLIFIED OR SPECIAL DIVORCE PROCEDURES: A summary divorce may be granted in New York if: (1) the spouses lived apart for 1 year according to the terms of a separation decree or a separation agreement; and (2) satisfactory proof is submitted to the court that the spouse seeking the divorce has substantially performed all the terms and conditions of the separation decree or separation agreement. There are sample divorce forms contained in the statute (Forms 1 and 12 for no-fault grounds), including the language necessary to state specific grounds and residency requirements. In addition, New York requires a financial disclosure to be filed in every divorce action. [Consolidated Laws of New York Annotated; Domestic Relations Law, Volume 8, Sections 170 and 236].

MEDIATION OR COUNSELING REQUIREMENTS: There are no legal provisions in New York for divorce mediation.

PROPERTY DISTRIBUTION: New York is an "equitable distribution" state. Separate property, including property acquired before a marriage and any gifts or inheritances whenever acquired, is to remain with the spouse who owns it. Separate property also includes any increase in value or property acquired in exchange for separate property. Marital property acquired during the marriage will be equitably divided between the spouses, based on the following factors: (1) the contribution of each spouse to the acquisition of the marital property, including the contribution of each spouse as homemaker; (2) the value of each spouse's property at the time of the marriage and at the time of filing for divorce; (3) the probable future economic circumstances of each spouse; (4) the length of the marriage; (5) the age and health of the spouses; (6) the amount and sources of income of the spouses; (7) the present and potential earning capability of each spouse; (8) the potential loss of inheritance or pension rights upon dissolution of the marriage; (9) whether the property award is instead of or in addition to maintenance; (10) custodial provisions for the children and the need for a custodial parent to occupy the marital home; (11) the type of marital property in question (whether it is liquid or non-liquid); (12) the impossibility or difficulty of evaluating an interest in an asset such as a business, profession, or corporation and the desirability of keeping such an asset intact and free from interference by the other spouse; (13) the tax consequences to each party; (14) the wasteful dissipation of assets; (15) any transfer of property made in anticipation of divorce; (16) any equitable claim that a spouse has in marital property, including joint efforts and expenditures, and contribution and services as a spouse, parent, wage earner, and homemaker, and to the career and career potential of the other spouse; and (17) any other factor necessary to do equity and justice between the spouses. Marital fault may be considered. Financial disclosure of assets and income are mandatory. [Consolidated Laws of New York Annotated; Domestic Relations Law, Volume 8, Section 236, Part B].

ALIMONY/MAINTENANCE/SPOUSAL SUPPORT: Either spouse may be awarded maintenance, without regard to marital fault, based on a consideration of the following factors: (1) the income and property of the spouses, including any marital property divided as a result of the dissolution of marriage; (2) any transfer of property made in anticipation of divorce; (3) the duration of the marriage; (4) the wasteful dissipation of marital property; (5) the contribution of each spouse to the marriage and the career of the other spouse, including services rendered in homemaking, child care, education, and career building of the other spouse; (6) the tax consequences to each spouse; (7) any custodial and child support responsibilities; (8) the ability of the spouse seeking support to become self-supporting and the time and training necessary; (9) any reduced lifetime earning capacity as the result of having foregone or delayed education, training, employment, or career opportunities during the marriage; (10) whether the spouse from whom maintenance is sought has sufficient property and income to provide maintenance for the other spouse; and (11) any other factor the court deems just and equitable. [Consolidated Laws of New York Annotated; Domestic Relations Law, Volume 8, Section 236, Part B].

SPOUSE'S NAME: At the wife's request, upon divorce the court may restore her maiden or other former name. [Consolidated Laws of New York Annotated; Domestic Relations Law, Volume 8, Section 240a].

CHILD CUSTODY: Joint or sole child custody is to be determined according to the best interests of the child. Neither parent is entitled to a preference. There are no factors specified in the statute. [Consolidated Laws of New York Annotated; Domestic Relations Law, Volume 8, Section 240 and New York Case Law].

CHILD SUPPORT: Either or both parents may be ordered to pay child support necessary for the support, maintenance, and education of the child. Health insurance coverage may be ordered to be provided. Marital misconduct of either parent is not to be considered. There are specific child support guidelines which are presumed to be correct, unless there is a showing that the amount of support would be unjust or inappropriate. The factors to be considered in determining the inappropriateness or justness of an award of support are: (1) the financial resources of the child; (2) the standard of living the child would have enjoyed if the marriage had not been dissolved; (3) the physical and emotional health of the child and any special needs or aptitudes of the child; (4) the financial resources, needs, and obligations of both the noncustodial and the custodial parent; (5) the tax consequences to each parent; (6) the non-monetary contributions that the parents will make towards the care and well-being of the child; (7) the educational needs of either parent; (8) whether one parent's income is substantially less than the other parent's; (8) the needs of other children of the non-custodial parent; (9) if the child does not receive public aid: any extraordinary expenses required for the non-custodial parent to exercise visitation rights; and (10) any other relevant factors. Security may be required for the payments. [Consolidated Laws of New York Annotated; Domestic Relations Law, Volume 8, Sections 32, 33, 236-Part B, 240, and 243 and New York Case Law].

PREMARITAL AGREEMENT: New York does not have any statutes pertaining to premarital agreements.

PREMARITAL AGREEMENTS: The agreement must be in writing, executed in the presence of two witnesses and acknowledged by the parties, and executed before someone who has the authority to administer an oath. The agreement can be amended or revoked after marriage. If the agreement conveys or determines rights to property, the agreement may be filed in every county where the property is located. If the agreement is not recorded, it is void. There must be a full and fair disclosure of the earnings and property of each party and the parties must have had an opportunity to consult with legal counsel. [Minnesota Statutes Annotated; Chapter 519.11].

CHILD SUPPORT: The court may order reasonable and necessary child support to be paid by either or both parents, without regard to marital fault, after considering the following factors: (1) the financial resources of the child; (2) the financial resources of the custodial parents; (3) the standard of living the child would have enjoyed if the marriage had not been dissolved; (4) the physical and emotional conditions and educational needs of the child; and (5) the financial resources and needs of the noncustodial parent. Provisions for medical insurance and medical care for any children may be ordered to be provided. There are specific child support guidelines specified in the statute. In addition, standardized child support guideline forms are available from the Clerk of any District Court. Child support payments may be ordered to be paid through the Clerk of the Court. After July 1, 1997, child support must continue through high school graduation, unless certain factors are met. [Colorado Revised Statutes; Article 10, Sections 14-10-115 and 14-10-117].

PREMARITAL AGREEMENT: The agreement must be in writing and signed by both parties and is enforceable without consideration. After the agreement becomes effective, it may be amended or revoked only a written agreement signed by both parties. The amended agreement is enforceable without consideration. The agreement is not enforceable if it is proven that (1) the agreement was not executed voluntarily or (2) before execution of the agreement the party was not provided a fair and reasonable disclosure of the property or financial obligations of the other party. If the marriage is determined to be void, the agreement is enforceable only to the extent to avoid an inequitable result. [Colorado Revised Statutes; Sections 14-2-303, 14-2-306, 14-2-307, and 14-2-308].