Legal Separation in New York

Spouses can become legally separated in two different ways in New York: a Separation Agreement or a Judgment of Separation.

A separation agreement is a contract between spouses that can be enforced by New York courts if a spouse fails to comply. Such an agreement may cover various issues, including child custody, visitation rights, division of property, and spousal support. The agreement may later be included in the divorce judgment. It is important that the agreement be prepared by a qualified attorney.

In order for a separation agreement to qualify as a ground for divorce, certain requirements should be carefully followed. The agreement must be filed with the county clerk where either spouse resides. At the end of one year from the date of the agreement, either spouse may sue the other spouse for a divorce. At that time, the party that filed for the divorce must prove to the court (1) that the agreement was duly executed and acknowledge and properly filed, (2) that the spouses have in fact lived apart during the period of the agreement up the time of the divorce action, and (3) that the party that sued for divorce has substantially complied with the terms of the separation agreement.

A Judgment of Separation is granted by the Supreme Court of New York (despite it being called “the Supreme Court,” this is actually New York’s trial court; it is not the highest court in the state, as the name might seem to imply). A Judgment for Separation is based on similar “fault” grounds as for divorce in New York. That is, for a Judgment of Separation, you have to present specific grounds establishing that the separation was the fault of one of the spouses. The possible grounds are:

• (1) cruel and inhuman treatment
• (2) abandonment
• (3) failure to provide support
• (4) adultery
• (5) imprisonment

Initial considerations for Divorce in New York

To file for divorce in New York, at least one party must be a resident of New York for a certain amount of time. The residency requirements are described in sections 230 and 231 of the New York Domestic Relations Law.

The venue, or the proper county in which to file the divorce case, is the county in which either party resides. Once you know the appropriate county in which to file the case, you must then find the proper court. In New York, it is the Supreme Court, which is the name of the lowest level state trial court. When a divorce action is filed, the Supreme Court can also decide child custody and support issues. If, however, there are family law issues, but no divorce is sought, the right court is Family Court. Each of New York's 61 counties (each borough of New York City is a separate county) has both a Supreme Court and a Family Court.

Grounds for Divorce

“Grounds for divorce” are the legal reasons for a divorce. A person seeking a divorce must state the "grounds for the divorce" in the papers filed with the Supreme Court. In New York the fault of a party must be stated and proved, while in other states, known as no fault states, there is no such requirement.

The grounds for divorce in New York are described in section 170 of the New York Domestic Relations Law:

• • Cruel and inhuman treatment;
• • Abandonment of one year or more;
• • Imprisonment of three years or more after marriage;
• • Adultery; and
• • Living apart for one year or more pursuant to a Decree of Separation or Separation Agreement.

The grounds for divorce in New York do not include: irreconcilable differences; incompatibility; no fault; or mutual consent or no communication.

Division of Property

New York is referred to as an “equitable distribution state” (as opposed to being a “community property state” as are some other states). This means that a certain type of property, “marital property,” will be distributed “equitably” among the spouses in a divorce. Other property, called separate property, is not divided between the spouses at the time of a divorce and is generally kept by the spouse who originally owned it. Take note that the word “equitable” does not necessarily mean equal or 50/50. It means that marital property will be divided in a fair or just way under the circumstances.

Marital property includes all property acquired by either spouse during the marriage prior to the commencement of any divorce or separation lawsuit, unless otherwise agreed to by the parties. Marital property also includes earning capacity from an advanced degree earned during marriage and a vested pension. Separate property remains separate. Separate property includes property acquired before the marriage; property acquired by bequest or gift from a non-spouse; compensation for personal injuries; property acquired in exchange or by increase in value of separate property; and property described as separate by written agreement of the parties.

New York courts generally consider at least fourteen separate factors in determining what is “equitable” for purposes of property distribution (as described in section 236.B.5.d of the New York Domestic Relations Law):

• (1) The income and property of each party at the time of marriage, and at the time of commencement of the action;
• (2) The duration of the marriage and the age and health of both parties;
• (3) The need of a custodial parent to occupy or own the marital residence and to use or own its household effects;
• (4) The loss of inheritance and pension rights upon dissolution of the marriage as of the date of the dissolution;
• (5) The loss of health insurance benefits upon dissolution of the marriage;
• (6) Any award of maintenance under DRL section 236.B.6;
• (7) Any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
• (8) The liquid or non-liquid character of all marital property;
• (9) The probable future financial circumstances of each party;
• (10) The impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party;
• (11) The tax consequences to each party;
• (12) The wasteful dissipation of assets by either spouse;
• (13) Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
• (14) Any other factor which the court shall expressly find to be just and proper.

Alimony/ Maintenance/ Spousal Support in New York

Alimony, which is referred to as “maintenance” in New York, is the court-ordered financial support of one spouse by the other spouse as part of a legal separation or a divorce.

In New York, alimony is not mandatory in a divorce or legal separation. A court may decide not to grant alimony or to limit the amount and duration of alimony depending on the ability of both parties to provide for their own needs. It is uncommon for maintenance to be granted for life. Typically, maintenance is limited in duration. Its purpose is to allow the recipient spouse to become self supporting or to improve the recipient spouse’s ability to be self supporting.

In New York, a court decides whether a spouse should be allowed maintenance on a case by case basis. Factors that affect the amount and duration of maintenance in New York include: the income disparity between the parties, the ability of each party to independently earn an income, the duration of the marriage, the health of the parties, and the presence of very young children. Courts may also take into account other relevant factors.

Tax Consequences of Alimony

It is important to understand that there may be tax implications for individuals who pay or receive alimony. According to Section 71 of the Internal Revenue Code, alimony must be included in the recipient’s gross income and can be excluded from the payer’s gross income.

However, it is critical that payments actually qualify as alimony under the law. To qualify as alimony (also according to Section 71 of the Internal Revenue Code), payments must generally meet five conditions:

• (1) The payment is be a cash payment (such as a check or money order)
• (2) The payment is received by (or on behalf of) a spouse under a “divorce or separation instrument”
• (3) The divorce or separation instrument does not designate the payment as a payment which is not includible in gross cross income as alimony and not allowable as a deduction for the payee spouse (under Section 215 of the Internal Revenue Code).
• (4) The payer and payee are not members of the same household at the time payments are made
• (5) There is no liability to make payments after the death of the recipient spouse

Sometimes it is difficult to determine whether a payment qualifies under the law as alimony. There also may be state and local tax implications for individuals who pay or receive alimony. Therefore, it is best to consult with an attorney or qualified tax professional.