Divorce FAQ: Questions & Answers | Family Lawyer Flushing NY

Q: How long does a divorce take in New York?

An uncontested divorce typically takes between 3 to 6 months . If the case involves agreements regarding child custody, support, or property division, it may take longer. The actual time depends on the workload of the court and the judge. An uncontested divorce can take six months or even longer. A contested divorce can last from several months to several years, depending on the complexity of the case.

Q: What are the court fees for a New York uncontested divorce?

The total court fee for an uncontested divorce is $345 , paid in three installments: Index Fee: $210 Note of Issue and RJI fee: $125 Judgment Copy and Certification Fee: $10 Credit card payment needs to add 3% process fees

Q: What are the fees for the contested divorce in New York?

Contested divorces have the same court fees as uncontested divorces, but may incur additional third-party costs, including: Appraisal fees: If assets like real estate or a business need to be appraised. Attorney for the child: If there's a dispute over child custody, the court may appoint a lawyer for the child. Court Reporter fees: To obtain records from the court Reporter. Interpreter fees: To hire an interpreter during deposition for the other party

Q: What are the attorney fees for a New York divorce?

Legal fees for an uncontested divorce are generally fixed . The cost is determined by the specific circumstances of the case, such as whether it involves child custody, child support, alimony, or asset and debt division. Contested divorces are typically billed hourly , with the rate depending on the lawyer's qualifications and experience.

Q: Can both parties hire the same lawyer?

No, you cannot. A single lawyer cannot represent both parties in a divorce due to the inherent conflict of interest. However, it is generally permissible for one party to have a lawyer while the other party does not.

Q: Can I get a divorce in New York if I got married abroad?

Yes, you can. As long as you meet the residency requirements for New York State, you can file for a divorce, regardless of where the marriage took place.

Q: Will a New York divorce certificate be recognized in China?

Yes, it can be recognized. You will need to obtain a three-level notarization and certification (by a County Clerk, the Secretary of State, and the Chinese Consulate in the U.S.) or an apostille certificate.

Q: How are assets divided in a New York divorce?

In New York, marital assets are subject to equitable distribution . This generally includes: Income earned by either party during the marriage, such as salary, bonuses, and company stock. Assets purchased by either party during the marriage, including real estate, vehicles, valuables, businesses, and retirement funds. All jointly owned assets . It's important to note that equitable distribution does not necessarily mean equal distribution . The court will fully consider non-monetary contributions, such as those made by a stay-at-home spouse.

have divorce questions?

Check out following list of divorce frequently asked questions and answers.

We recommend consulting a lawyer in person for guidance specific to your situation.

Divorce Frequently Asked Questions (FAQS)

Divorce Time & Cost

How long does a divorce take in New York?

An uncontested divorce typically takes between 3 to 6 months. If the case involves agreements regarding child custody, support, or property division, it may take longer. The actual time depends on the workload of the court and the judge. An uncontested divorce can take six months or even longer. A contested divorce can last from several months to several years, depending on the complexity of the case.

What are the court fees for a New York uncontested divorce?

What are the fees for the contested divorce in New York?

Contested divorces have the same court fees as uncontested divorces, but may incur additional third-party costs, including:

Appraisal fees: If assets like real estate or a business need to be appraised.
Attorney for the child: If there's a dispute over child custody, the court may appoint a lawyer for the child.
Court Reporter fees: To obtain records from the court Reporter.
Interpreter fees: To hire an interpreter during deposition for the other party

What are the attorney fees for a New York divorce?

Can both parties hire the same lawyer?

Uncontested & contested divorce proceedings

What is the main process for a New York uncontested divorce?

Filing: Submit documents and pay fees to get an index number.
Service: Divorce papers are served to the defendant by a third party.
Response/Settlement: Wait for the defendant's response. If the case involves children or assets, a settlement agreement must be drafted and submitted to the court.
Document submission: Submit NOI and RJI along with other required documents including the Stipulation of Settlement if any.
Judgment and NOE: The judge granted the divorce judgment and file a notice of entry

What's the main process of a contested divorce?

Similar to uncontested proceedings, an action for a contested divorce shall be commenced by the filing of a summons with notice or a summons with a verified complaint, which must be served upon the defendant. If the parties are unable to reach an agreement on one or more issues, the matter proceeds as a contested divorce. In such cases, the following process may occur:

Conferences: An conference is held to conduct asset investigation and appraisal, and negotiations
Motions: Lawyers can file motions requesting the judge to grant temporary custody, visitation rights, or child support.
Mediation: If the parties cannot reach an agreement, a judge may require mediation.
Trial: If mediation fails, the case proceeds to a formal trial.
Final Judgment: The divorce is finalized by a judge's ruling and entered into the court system.

If both parties want a divorce, does it matter who files the divorce?

Does an uncontested divorce need to be approved by the court?

Default , annulment & speedy divorce questions

What is a default divorce ?

What if the other party is avoiding service or has disappeared?

How do you apply for an annulment of a marriage?

Am I allowed to file speedy divorce in other states?

Assets division in divorce

How are assets divided in a New York divorce?

In New York, marital assets are subject to equitable distribution. This generally includes:

Income earned by either party during the marriage, such as salary, bonuses, and company stock.
Assets purchased by either party during the marriage, including real estate, vehicles, valuables, businesses, and retirement funds.
All jointly owned assets.

It's important to note that equitable distribution does not necessarily mean equal distribution. The court will fully consider non-monetary contributions, such as those made by a stay-at-home spouse.

Is a 50/50 split of assets guaranteed by the court? What factors are considered?

A 50/50 division is not guaranteed.

A judge will consider the following factors to determine equitable distribution:

Income and Property: The income and property of each spouse during the marriage and at the time of the divorce.
Duration of Marriage: The length of the marriage, as well as the age and health of each spouse.
Future Economic Status: The potential future economic circumstances of both parties, including the loss of inheritance and pension rights.
Contribution to Property: One spouse's contribution to the appreciation or increase in value of property titled in the other spouse's name.
Type of Property: The nature of the marital property, including whether it is a business, real estate, etc.
Other Factors: Any other factors the court finds to be just and proper.

Does a stay-at-home spouse have equal rights in a divorce?

What if the other party has already transferred assets?

Do pre-marital assets, like a house, also have to be split?

Spousal support (alimony) & child support

How is spousal support (alimony) calculated in a New York divorce?

What factors does the court consider for spousal support or alimony ?

The court considers all of the following factors when determining spousal support (alimony) payments:

1. Income and Assets: The income and assets of each spouse, including property awarded in the divorce.

2. Duration of Marriage: The length of the marriage, as well as the age and health of each spouse.

3. Earning Capacity: The potential earning capacity of each spouse.

4. Self-Sufficiency: The ability of each spouse to become self-sufficient and the time needed to do so.

5. Lost Earning Capacity: Whether one party's earning capacity was reduced due to the marriage or child-rearing.

6. Child Residence: Which parent the child lives with.

How is child support calculated in a New York divorce?

Child support is calculated based on the parents' combined income and the number of children. The non-custodial parent typically pays a percentage of their income:

1 child: 17%

2 children: 25%

3 children: 29%

4 children: 31%

Child support is generally paid until the child turns 21 years old. Additionally, both parents must pay for add-on expenses such as unreimbursed medical costs and childcare expenses based on their income ratio. If they agree, they can also share the costs of extracurricular activities, summer camps, or college expenses.

Child custody in divorce

What are the legal custody and physical custody ?

What factors does the court consider for child custody determination?

The court's sole standard for determining custody is the “best interest of the child.” A judge will consider numerous factors, including:

Primary Caregiver: Which parent has been the child's primary caregiver.
Parenting Skills: Each parent’s parenting skills, strengths, and weaknesses.
Physical and Mental Health: The physical and mental health of each parent.
Domestic Violence: The existence of any family violence.
Work & Parenting Plans: Each parent’s work schedule and parenting plan.
Relationships: The child’s relationship with siblings and other family members.
Cooperation: Each parent’s ability to cooperate with the other parent.
Child’s Needs: The child’s needs, depending on their age.

If I don't have an income, can I still get custody?

Will the mother automatically get custody? Is it difficult for a father to get custody?

Divorce residency requirements

Are there residency requirements for divorce in New York?

You must meet at least one of the following conditions at the time of filing:

Either you or your spouse has been living in New York State continuously for at least two years before the divorce case is started.
Either you or your spouse have been living in New York State continuously for at least one year before the divorce case is started and

(1) you got married in New York State, or

(2) you lived in New York State as a married couple, or

(3) the grounds for your divorce happened in New York State;

Both you and your spouse are residents of New York State on the day the divorce is started and the grounds for your divorce happened in New York State.

Please note: You cannot file for divorce in New York unless you meet certain conditions. Click here to view the relevant information on the New York Unified Court System .

Can I get a divorce in New York if I got married abroad?

Will a New York divorce certificate be recognized in China?

Grounds for Divorce

Do you need a ground to file for a divorce?

You must also have a legally recognized reason—called a "ground"—for divorce under New York law. The acceptable grounds include:

Before 2010 (Fault-based divorce): Divorce had to be based on fault. The main grounds included: cruel and inhuman treatment, abandonment (for one year or more), imprisonment, or adultery. Or if parties have signed a separation agreement for more than one year, they can file for divorce.

After 2010 (No-fault divorce): Since the new law was signed in 2010, either party can file for divorce by stating that the marriage has been “irretrievably broken down” for six months or more, without proving any fault on the part of the other spouse. No-fault divorce is a supplement, not a replacement, for fault-based divorce.

Can you automatically get a divorce after being separated for more than a year?

If we had a wedding, lived together, and have a child together, but never got a marriage license, how do we get a divorce?

Prenuptial & postnuptial

Do prenuptial or postnuptial agreements have an effect on divorce?

What should be included in a prenuptial agreement?

Both parties' premarital assets must be transparent and disclosed. This includes not only assets within the United States but also any held abroad.

Failing to disclose premarital assets may lead to unnecessary disputes during divorce proceedings.

If an asset was not listed in the prenuptial agreement and is later discovered by the other party during a divorce, it may be difficult to explain clearly. One party may claim it was a premarital asset, while the other may argue that it was not listed in the prenuptial agreement, thus it must be a marital asset subject to division.

If both parties agree during the drafting of the prenuptial agreement to clarify certain rights in the event of a divorce—such as the right to claim spousal support, attorney’s fees, division of the other party’s personal assets, the responsibility of the debt —this can save a significant amount of time and legal fees during divorce proceedings.

What shall be included in a postnuptial agreement?

When problems arise in a marriage, the couple may enter into a postnuptial agreement either in an attempt to save the marriage or to prepare for divorce. Such agreements clarify the rights and obligations of both parties.

If the goal is to save the marriage, this often occurs after one party has emotionally hurt the other—such as through infidelity. In such cases, the hurt party may request an adjustment or redistribution of assets.

In New York State, infidelity in itself does not carry any legal penalty. If the cheating party agrees in writing to leave the marriage without taking any assets ("walk away with nothing"), but later regrets and challenges the agreement, the court may very well invalidate the postnuptial agreement. However, a postnuptial agreement is generally harder to overturn if both parties were represented by legal counsel during its drafting.

If both parties agree in a postnuptial agreement and clarify the spousal support, attorney’s fees, the division of marital assets, the responsibilities of debt payment, and inheritance rights, it can significantly reduce the time and legal expenses involved in a future divorce.

Immigration & criminal case complications in divorce

How does divorce affect green card applications and citizenship?

If you obtained your green card through marriage to a U.S. citizen, divorce can have a major impact.

Conditional Green Card (2 years): If you get a divorce while holding a conditional green card, you can still apply for a 10-year permanent green card on your own, but the difficulty increases significantly. The USCIS will require more evidence to prove the authenticity of the marriage. If your application is denied, you could be placed into deportation proceedings.
Permanent Green Card (10 years): If you already have a 10-year permanent green card, a divorce will not directly impact your immigration status. But the waiting time to apply for US citizenship will be longer.

How does a criminal case impact a divorce?

If either party has a criminal case during the divorce proceedings, it will have a negative impact on their rights

Child Custody: A criminal case, especially one involving violence, will be extremely detrimental to a parent seeking child custody. If your criminal case involves serious harm to the child, you will likely lose the child custody.
Property Division: If the case involves harm to the spouse, it can also create a negative impression on the court, which may impact the division of assets.

Consequences of speedy divorce in other states?