Legal Separation in New York State
Certain formalities must be followed for legal separation to qualify as grounds
for divorce in NY. Simply living apart, without a written separation agreement
or a court judgment of separation will not stand up to New York State divorce
laws. You must have a detailed contract, which states that the parties agree
to live separate for the rest of their lives and shall also set forth the rights
and duties of the husband and wife with respect to child custody, child visitation,
child support payments, distribution of property, and all other matters pertaining
to the marital relationship. After one year of filing a judgment of separation,
as well as one year of living apart, either party may sue for a “no fault”
divorce. However, divorce in NY is not automatic and court action must be taken.
Before the court, each case shall stand on its own facts and will be governed
by divorce law in New York State.
Alimony & Equitable Distribution in New York State
Divorce laws in New York State provide for “maintenance” instead
of “alimony”. Maintenance, as defined by divorce law in New York
State, is known as “payments…for a definite or indefinite period
of time, to meet the reasonable needs of a party to the matrimonial action….”
Maintenance served as an opportunity for the spouse to achieve independence,
where alimony was awarded for the sole purpose of maintaining the wife’s
prior standard of living.
New York State is known as an equitable distribution state. Equitable distribution
in New York is a method of distributing marital property acquired by or owned
by either spouse during the course of the marriage. This means that the court
must equitably distribute all marital property regardless of the manner in which
title, or ownership, is held.
New York State Child Support, Child Custody and Child Visitation
New York State divorce law defines sole legal custody as “the sum of
the rights and obligations with respect to the upbringing of the child…to
the exclusion of all others, and to make all decisions regarding the health,
education, welfare and religion of the child.” Although child visitation
has sometimes been described by the court of appeals as a “limited form
of custody” in actuality this arrangement is only a visiting right granted
to the parent who does not share control of the child’s upbringing.
Child support (a sum of money paid by the non-custodial parent to assist with
the support of his children) is determined by the combined parental income multiplied
by the appropriate child support percentage. For example, for 2 children, the
amount is based on 25% of the combined parental income. Child support usually
ends upon a child’s emancipation at the majority age of 21.