1. Grounds for Divorce in New York
New York allows spouses to file on no-fault or fault-based grounds under Domestic Relations Law §170. Which route a spouse chooses affects more than the paperwork; it can influence the outcome of spousal maintenance proceedings.
No-Fault Divorce
A court may grant a divorce when a marriage has broken down irretrievably for at least six months. This is the most common basis. No misconduct needs to be proven, but the divorce cannot be finalized until all ancillary issues, including property, custody, and support, are fully resolved.
Fault-Based Grounds
New York also recognizes six fault-based grounds:
- Cruel and inhuman treatment
- Abandonment for one year or more
- Imprisonment for three or more consecutive years after the marriage
- Adultery
- Living apart for six months under a written separation agreement
- Living apart for six months under a court-issued separation decree
Fault generally does not reduce or increase a spouse's share of marital property. It can, however, be considered in maintenance disputes, particularly when cruel treatment or abandonment is alleged. Spouses weighing a fault-based petition should understand that each fault-based ground carries its own procedural requirements, which no-fault divorce avoids.
2. Residency and Filing
Before a case can proceed, at least one spouse must satisfy New York's residency requirements under DRL §230. These requirements determine whether the Supreme Court of the State of New York has jurisdiction.
| Scenario | Residency requirement |
| Both spouses are NY residents and the cause of action arose in NY | No minimum period |
| The marriage took place in NY, or the parties lived as a married couple in NY | 1 year of continuous residence |
| All other cases | 2 years of continuous residence |
Both spouses are NY residents and the cause of action arose in NY
- Residency requirementNo minimum period
The marriage took place in NY, or the parties lived as a married couple in NY
- Residency requirement1 year of continuous residence
All other cases
- Residency requirement2 years of continuous residence
Once residency is confirmed, the filing spouse, known as the plaintiff, commences the action in New York Supreme Court by filing a Summons with Notice or a Verified Complaint. The other spouse has 20 days to respond if served in New York, or 30 days if served outside the state.
3. What Happens during the Divorce
From the moment a divorce action is filed, both parties are bound by automatic temporary restraining orders. These orders prohibit either spouse from transferring or disposing of marital assets, changing insurance beneficiaries, or removing children from New York without the other's written consent or a court order.
The case then moves through these stages:
- Service of process and response
- Financial disclosure and document exchange
- Temporary order hearings on custody, support, and use of the marital home
- Negotiation and settlement
- Trial, if no agreement is reached
Most New York divorces settle before trial. Divorce mediation offers an alternative path that tends to cost less and move faster when both spouses are willing to negotiate. When settlement fails, the case goes to a Supreme Court judge, who decides all remaining issues.
4. Property Division in New York
New York divides marital property under the equitable distribution standard in DRL §236B, meaning the court divides assets fairly rather than equally. The first question in any property dispute is what actually qualifies as marital property.
Marital and Separate Property
Marital property includes assets and debts acquired during the marriage, regardless of whose name appears on the account or title. Separate property covers what one spouse owned before the marriage, as well as inheritances, personal injury compensation, gifts from third parties, and anything a valid prenuptial or postnuptial agreement designates as separate.
How Courts Decide What Each Spouse Receives
Under DRL §236B(5)(d), courts weigh the length of the marriage, each spouse's income and earning capacity, contributions to the marriage (including as a homemaker), the tax consequences of any proposed distribution, and whether a marital agreement exists. Retirement accounts subject to federal law require a Qualified Domestic Relations Order (QDRO) to divide without triggering taxes or early-withdrawal penalties. In cases involving business ownership or real property, the court may appoint a neutral expert to value the asset. Equitable distribution disputes in high-asset cases, or those involving mixed or commingled assets, often take the most time to resolve.
5. Child Custody and Support
When children are part of the case, the court addresses custody and support as related but legally distinct questions. Both are governed by New York statute, though the child support formula reflects federal policy requirements that apply across all states.
Custody Arrangements
New York distinguishes between legal custody, which covers decisions about a child's education, healthcare, and religious upbringing, and physical custody, which determines where the child lives day to day. Courts apply the best interests of the child standard, weighing each parent's stability, the child's existing bonds with each parent, any history of domestic violence or substance abuse, work schedules, and the child's stated preferences depending on age and maturity.
Joint legal custody is common. Physical arrangements vary based on the family's circumstances, and courts are generally reluctant to limit a child's contact with either parent without good reason.
Calculating Child Support
The Child Support Standards Act (CSSA) sets support based on a percentage of the parents' combined income:
| Number of children | Percentage of combined income |
| 1 | 17% |
| 2 | 25% |
| 3 | 29% |
| 4 | 31% |
| 5 or more | At least 35% |
1
- Percentage of combined income17%
2
- Percentage of combined income25%
3
- Percentage of combined income29%
4
- Percentage of combined income31%
5 or more
- Percentage of combined incomeAt least 35%
This percentage applies up to a statutory income cap, currently $203,000 as of 2025, which the legislature adjusts periodically. Courts may deviate from the formula when applying it mechanically would produce an unjust result. Child custody and support orders remain open to modification after the judgment if either party experiences a substantial change in circumstances.
6. Spousal Maintenance
New York courts may award temporary maintenance while the divorce is pending (called pendente lite) and post-divorce maintenance after the judgment is entered. Each type is calculated using a separate advisory formula under DRL §236B(5-a) and §236B(6).
How Maintenance Is Calculated
Both formulas produce an advisory amount based on the incomes of both spouses. The court then considers the standard of living during the marriage, each spouse's health and earning capacity, the length of the marriage, and whether one spouse left the workforce or reduced hours to care for children. The result is a range, and judges retain discretion to award more or less depending on the circumstances.
Duration and Modification
New York provides an advisory duration schedule calibrated to the length of the marriage. Maintenance ends automatically when the recipient remarries. Either party may seek modification upon a substantial change in circumstances, such as a significant income shift, a health change, or retirement. Courts apply a demanding standard for modification, so the initial order matters.
7. After the Final Judgment
A divorce judgment closes the marriage legally, but it does not always end the court's involvement. Custody and support orders stay in effect until children reach adulthood, and New York courts retain jurisdiction to modify or enforce them throughout that period. Property transfer obligations in the judgment are generally final, but non-compliance can be addressed through contempt proceedings. Either party may appeal the court's rulings within the time limits set by New York procedural rules.
8. Frequently Asked Questions
How long does a New York divorce typically take?
An uncontested divorce where both parties agree on all terms can be finalized in roughly three to six months once all paperwork is in order. A contested case involving custody or significant assets often runs considerably longer; two years or more is not unusual when the issues are genuinely disputed.
Does marital fault change how property is divided?
In most cases, no. New York courts do not reduce a spouse's share of marital property because of misconduct. Egregious fault can come up in maintenance decisions, but it is not a routine factor in property division.
Can a divorce order be changed after it is entered?
Custody and child support orders can be modified upon showing a substantial change in circumstances. Property division provisions in a final judgment are generally not reopened absent fraud, duress, or a mutual mistake of fact.
What happens if one spouse does not follow the court order?
New York courts can enforce support obligations through income execution and, in willful cases, contempt proceedings. Violations of custody and visitation terms are also addressable through the court, including through modification of the underlying order if a pattern of noncompliance is established.
29 May, 2026
