The Court must determine whether it has jurisdiction over the subject matter and the parties. Have one or both of the parties resided in the state for a long enough period of time for the Court to obtain jurisdiction? In New York a statute provides specific jurisdictional bases.
New York became a “no-fault” divorce state with the enactment of a statute which provides that the plaintiff need only plead that the marriage has irretrievably broken down for a period of more than six months.
Although the existing grounds for divorce were retained (cruel and inhuman treatment, abandonment, adultery, living apart for more than one year following execution of a Separation Agreement, constructive abandonment), the choice of the irretrievable breakdown ground will avoid the time, expense, and potential nastiness sometimes involved with proving the fault grounds.
In New York, the Court must distribute the marital property equitably between the parties according to the so-called equitable distribution statute. The parties can “opt out” by agreeing between themselves on the division of their marital property in an Opting-Out Agreement.
The marital property subject to equitable distribution is basically all property acquired during the marriage, with a few exceptions. Property obtained through inheritance, gift, or the settlement of a personal injury action is not marital property. Such property is “separate property”, as is property owned by a party prior to marriage. The appreciation in value of separate property during marriage is marital property if that appreciation is attributable to the efforts of the spouses.
The award of child support in New York is governed by a statute, the Child Support Standards Act (CSSA). The CSSA sets specific percentages of income which the non-custodial parent must pay to the custodial parent as child support. If the Judge assigned to the case deviates from the percentages prescribed by the CSSA, he or she must state in writing why the deviation was allowed. The CSSA percentages, which increase according to the number of the children of the marriage, are set forth in a chart which is provided to the parties in all New York divorce actions (and in all Family Court child support proceedings).
Maintenance (which replaced the “alimony” available under prior law) is also governed by statute in New York. The factors which must be considered in setting the amount of maintenance are set forth in the statute. There is also a temporary maintenance statute in effect which prescribes a formula for determining the amount of temporary maintenance a higher income spouse must pay to the lower income spouse during the pendency of the divorce action.
CHILD CUSTODY and VISITATION
The governing principle which guides the Court in making decisions concerning custody and visitation is “the best interests of the child”. The Court is free to consider any issue relevant to a determination of the best interests of the child.
Each party must let the Court know in writing that he or she is aware of the fact that upon the signing of a judgment of divorce he or she can no longer be covered by the other spouse’s health insurance (except for Cobra coverage). The availability of health insurance is an issue that must be addressed by the parties in every New York divorce action.