An action for divorce, separation, annulment, or declaration of the nullity of a void marriage can be filed in New York only in one of the following circumstances: (a) the parties were married in New York and either party is a resident thereof for a continuous period of one year prior to commencement of the action; (b) the parties have resided in the state as spouses and either party has been a resident for a continuous period of one year prior to commencement of the action; (c) the cause of action occurred in New York and either party has been a resident for a continuous period of one year prior to commencement of the action; (d) the cause occurred in New York and both parties are residents as of the time of commencement of the action; or (e) either party has been a resident of New York for a continuous period of at least two years prior to commencement of the action.  Domestic Relations Law § 230.

The doctrine of forum non conveniens is codified in the Civil Practice Law and Rules 327(a), which states that “[w]hen the court finds that in the interest of substantial justice the action should be heard in another forum, the court, on the motion of a party, may stay or dismissthe action in whole or in part on any conditions that may be just. The domicile or residence in this state of any party to the action shall not preclude the court from staying or dismissing the action.”

Among the factors to be considered by a court are the financial and administrative burdens on the New York courts, the potential hardship to the defendant, the availability of an alternative forum, and whether the cause of action arose primarily in another jurisdiction.  See Nasser v. Nasser, 52 A.D.3d 306  (1^st  Dept. 2008) (motion to dismiss action on grounds of forum non conveniens granted based on the burden on the New York courts, the potential hardship to defendant, the availability of an alternative forum and the fact that the causes of action, for the most part, arose in Brazil); Karella v Karella, 159 AD2d 414, 414 (1^st Dept. 1990) (affirming dismissal where defendant showed that Greece was the more appropriate forum).

The Domestic Relations Law governs all matrimonial actions in the State of New York,  i.e., actions for divorce, separation, annulment, or to declare the nullity of a void marriage.

The grounds for divorce are set forth in Domestic Relations Law § 170, and include both fault and no-fault grounds.

The grounds are:  (a) cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well-being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant; (b) the abandonment of the plaintiff by the defendant for a period of more than one year; (c) the confinement of the defendant in prison for a period of three or more consecutive years after the marriage of the parties; (d) adultery; (e) living apart pursuant to a decree of separation for more than one year, and submission of proof that the plaintiff has complied with the terms of the decree; (f) living apart pursuant to an agreement of separation for a period of more than one year, and submission of proof that the plaintiff has complied with the terms of the agreement; and (g) the irretrievable breakdown of the marriage for a period of at least six months, provided that one party has so stated under oath.

A copy of the Summons with Notice or Summons and Verified Complaint must be personally delivered on the defendant.

New York will recognize a marriage validly entered into in a foreign country, unless that marriage violates New York’s public policy, for example, a marriage between an adult and a child, an incestuous marriage, or a polygamous marriage.

Under the doctrine of comity, full faith and credit will be accorded to a judgment of a foreign country unless it is established that the foreign judgment is violative of a strong public policy or has been procured by fraud.  New York will recognize a foreign divorce judgment so long as: both parties received adequate notice; at least one party was physically present within the jurisdiction of the court rendering the divorce; and there was some type of personal appearance or submission to the foreign court’s authority by the responding spouse, evidenced either by appearing in person in the foreign court, or by signing a document in which he/she agreed to allow the foreign court to make divorce-related decisions and terminate the marriage.

Same-sex marriages have been recognized in New York since passage of the Marriage Equality Act in 2011.  In 2015, the United States Supreme Court struck down all state bans on same-sex marriage, legalized it in all fifty states, and required states to honor out-of-state same-sex marriages.  Obergefell v. Hodges, 576 U.S. 644 (2015).

Thus, New York will recognize same-sex marriages that have taken place in a foreign jurisdiction in which such marriages are valid.

Courts in New York address the issues of property division and spousal maintenance  pursuant to Domestic Relations Law § 236B.

Equitable Distribution of Property

“Marital Property” is defined as: “all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held,” and exclusive of Separate Property.  Domestic Relations Law § 236B1.c.

“Separate Property” is not divided between spouses upon a divorce, and is defined as: (a) a spouse’s premarital property; (b) property inherited by a spouse; (c) property gifted to a spouse by a third party; (d) compensation for personal injury; (e) property acquired in exchange for Separate Property; (f) the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse; and (g) property defined as Separate Property in a validly-executed prenuptial or postnuptial agreement.  Domestic Relations Law § 236B1.d.  If there is a dispute as to whether a particular asset is Separate Property, the spouse making that claim bears the burden of proof by a preponderance of the evidence.

New York is an “equitable distribution” state, meaning that Marital Property is not automatically divided equally between spouses upon a divorce, but rather is divided “equitably” pursuant to a list of statutory factors set forth in Domestic Relations Law 236B5.d:  (a) the income and property of each party at the time of the marriage and at the time of the commencement of the action; (b) the duration of the marriage and the age and health of both parties; (c) the need of a custodial parent to occupy or own the marital residence and to use or own its household effects; (d) the loss of inheritance and pension rights upon dissolution of the marriage; (e) the loss of health insurance benefits upon dissolution of the marriage; (f) any award of maintenance; (g) 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 and career potential of the other party; (h) the liquid or non-liquid character of all marital property; (i) the probable future circumstances of each party; (j)  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; (k) the tax consequences to each party; (l) the wasteful dissipation of assets by either spouse; (m) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; (n) whether either party has committed an act or acts of domestic violence … against the other party and the nature, extent, duration and impact of such act or acts; (o) in awarding the possession of a companion animal, the court shall consider the best interest of such animal …; and (p) any other factor which the court shall expressly find to be just and proper.

In order to facilitate or effectuate a division of Marital Property (including an interest in  a business or professional practice), a court in lieu of such equitable distribution may make a distributive award (i.e., a. lump sum cash award, in some instances payable in installments over time) in order to achieve equity between the parties.  Domestic Relations Law §§ 236B1.b and e.

Spousal Maintenance

A court may award an amount of maintenance to the lower-earning spouse based either upon a formulaic approach set forth at Domestic Relations Law § 236B(6)(a) that caps the  payor’s income at $228,000 or, particularly in high net worth cases, a consideration of the statutory factors set forth at Domestic Relations Law § 236B(e), as follows:   (a) the age and health of the parties; (b) the current or future earning capacity of the parties, including a history of limited participation in the workforce; (c) the need of one party to incur education or training expenses; (d) the termination of a child support award before the termination of the maintenance award when the calculation of maintenance was based upon child support being awarded which resulted in a maintenance award lower than it would have been had child support not been awarded; (e) the wasteful dissipation of marital property, including transfers or encumbrances made in contemplation of a matrimonial action without fair consideration; (f) the existence and duration of a premarital joint household or a pre-divorce separate household; (g) acts by one party against the other that have inhibited or continue to inhibit a party’s earning capacity or ability to obtain meaningful employment, including, but not limited to, acts of domestic violence; (h) the availability and cost of medical insurance for the parties; (i) the care of children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws provided during the marriage that inhibits a party’s earning capacity; (j) the tax consequences to each party; (k) the standard of living of the parties established during the marriage; (l) the reduced or lost earning capacity of the payee as a result of having foregone or delayed education, training, employment or career opportunities during the marriage; (m) the equitable distribution of marital property and the income or imputed income on the assets so distributed; (n) the contributions and services of the payee as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party; and (o) any other factor which the court shall expressly find to be just and proper.

With respect to the duration of spousal maintenance, courts in New York look to Domestic Relations Law § 236B.6.f, which sets forth the following “advisory schedule,” although a court may deviate therefrom:

For marriages between 0 and 15 years’ duration, maintenance will be payable for a period ranging from fifteen percent (15%) to thirty percent (30%) the length of the marriage.

For marriages between 15 and 20 years’ duration, maintenance will be payable for a period ranging from thirty percent (30%) to forty percent (40%) the length of the marriage.  

For marriages over 20 years’ duration, maintenance will be payable for a period ranging from thirty-five percent (35%) to fifty percent (50%) the length of the marriage.

Pensions and tax-deferred retirement accounts, to the extent accrued during the marriage prior to the date of commencement of a matrimonial action, are subject to equitable distribution  just like any other Marital Property asset.  The Marital Property portion of the pension or tax-deferred retirement account is divided between the parties pursuant to a Qualified Domestic Relations Order (“QDRO”) issued by the court that in turn allows the transfer of pension/retirement benefits to the other spouse without incurring penalties or taxes that would otherwise be due in connection with an early withdrawal of such funds.

Yes. Pursuant to Domestic Relations Law § 236B(5-a), a court may award temporary spousal maintenance during the pendency of an action, as well as interim child support pursuant to Domestic Relations Law § 240.

With respect to professional fees, Domestic Relations Law § 237 expressly provides that a court “may direct either spouse … to pay counsel fees and fees and expenses of experts directly to the attorney of the other spouse to enable the other party to carry on or defend the action or proceeding as, in the court’s discretion, justice requires, having regard to the circumstances of the case and of the respective parties.  There shall be a rebuttable presumption that counsel fees shall be award to the less monied spouse.  In exercising the court’s discretion, the court shall seek to assure that each party shall be adequately represented and that where fees and expenses are awarded, they shall be awarded on a timely basis, pendente lite, so as to enable adequate representation from the commencement of a proceeding.”

If the New York court recognizes the foreign divorce judgment (see paragraph 6, supra), then it can serve as the basis for an action seeking financial relief, including equitable distribution of property.

Pursuant to Civil Practice Law and Rules § 5303, a court in New York will recognize the financial order of a foreign court, including such orders relating to pensions.  The process for doing so is for the proponent of the foreign order to make a motion for summary judgment in lieu of complaint seeking to domesticate the foreign judgment.  A court in New York may not recognize the judgment of a foreign court in certain circumstances, inter alia: if such judgment: was rendered by a judicial system that does not provide impartial tribunals or procedures compatible with due process of law; the foreign court did not have personal jurisdiction over the defendant; the foreign court did not have jurisdiction over the subject matter; the defendant did not receive notice of the foreign proceedings; the judgment was obtained by fraud; the judgment is repugnant to the public policy of New York or of the United States; the proceeding was contrary to an agreement between the parties under which the dispute in question was to be determined otherwise than by a proceeding in that foreign court.  Civil Practice Law and Rules §§ 5304 (a) and (b).

If a couple gets married in New York, they do not elect a “property regime” at the time of the marriage, as is common in some other countries.  A couple can, however, enter into a prenuptial agreement as discussed more fully in paragraph 14, infra.

If a couple is married in a foreign jurisdiction and elects a property regime, and at some later date is getting divorced in New York, the court will recognize the election of the property regime if validly entered into under the law of the foreign jurisdiction, and treats it akin to a prenuptial agreement.  See discussion infra, at paragraph 14.

New York has a strong public policy in favor of prenuptial and postnuptial agreements, which are valid so long as they are written and signed by the parties and “acknowledged or proven in the manner required to entitle a deed to be recorded.”  Domestic Relations Law § 236B.3.  Such agreements may include provisions defining the parties’ property rights upon a divorce, the parties’ respective rights and obligations regarding spousal maintenance (including waivers thereof), and, if the marriage ends in death, the surviving spouse’s rights in the deceased spouse’s estate.  The provisions must be “fair and reasonable at the time of the making of the agreement and not unconscionable at the time of entry of final judgment.”  Id.

New York courts accord the same presumption of legality as any other contract to prenuptial and postnuptial agreements validly entered into under the laws of a foreign jurisdiction.  Notable cases include Van Kipnis v. Van Kipnis, 43 A.D.3d 71 (1^st Dept. 2008)(upholding the parties’ election of a separate property regime when they married in Paris and then spent their entire thirty-eight year marriage in New York); and Stawski v. Stawski, 43 A.D.3d 776 (1^st Dept. 2007) (upholding German prenuptial agreement despite bride, age 22 at the time of the marriage, not understanding the German language and not having independent counsel).

In New York, “child maintenance” is called “child support” and is governed by Domestic Relations Law § 240.  It falls into two general categories, “Basic Child Support” and “Add-Ons.”

Basic Child Support

“Basic Child Support” is a monthly amount payable from the non-primary residential parent to the primary residential parent until a child reaches age 21.  The amount of Basic Child Support is determined by multiplying the first $183,000 of combined gross parental income from all sources, by a percentage that is determined by the number of children under age twenty-one (21), namely, seventeen percent (17%) for one child; twenty-five percent (25%) for two children; twenty-nine percent (29%) for three children; thirty-one percent (31%) for four children; and no less than thirty-five percent (35%) for five or more children.  The amount derived from that calculation is then apportioned between the parties in the same ratio that their incomes bear to one another, and results in the “presumptively correct amount” of Basic Child Support.

However, in cases where the combined annual parental income exceeds the current mandatory “cap” of $183,000, courts have wide discretion to apply the statutory formula above that amount, and/or to consider other factors such as the standard of living the child would have enjoyed had the marriage or household not dissolved.  Of note in this regard are the following decisions:  MM v. DM, 159 A.D.3d 562 (1^st Dept. 2018) (formula applied to the first $650,000); Klauer v. Abeliovich, 149 A.D.3d 617 (1^st Dept. 2017) (formula applied to the first $800,000); Sykes v. Sykes, 43 Misc.3d 1220 (Sup. Ct. N.Y. County 2014) (formula applied to the first $600,000).

The “Add-Ons”

In addition to Basic Child Support, courts also apportion the following statutory “Add Ons” between the parents in the same ratio as the parents’ incomes bear to one another: (a) the cost of reasonable childcare if the primary residential parent is employed or receiving educational or vocational training that a court determines will lead to employment; (b) the cost of medical insurance for the child or children; (c) the cost of medical expenses not covered by insurance; (d) depending on the circumstances of the case, the cost of private schooling elementary and secondary education, as well as the cost of an undergraduate university education.

Finally, it is not unusual, albeit not mandated by statute, for parents to agree to share (proportionate to their incomes or in some other ratio) the cost of a child’s extracurricular lessons, activities, and summer camp, in addition to the Basic Child Support obligation and the statutory “Add-Ons.”

Courts in New York do not award “capital sums” for a child.

With respect to housing, the cost of shelter attributable to the children is inherent in the Basic Child Support obligation calculated pursuant to the formula set forth in Domestic Relations Law § 240 and discussed in response to question #15, supra.  It has long been settled that a court cannot direct a party to pay, in addition to Basic Child Support, the carrying charges for the marital residence (e.g., mortgage, real estate taxes, homeowner’s insurance, utilities) in which the children reside without stating the reasons therefor.  See  Chasin v Chasin, 182 A.D.2d 862 (2^nd Dept. 1992); Meyer v Meyer, 173 A.D.2d 1021 (2^nd Dept. 1991); Ryan v Ryan, 186 A.D.2d 245 (2^nd Dept. 1985).

The above is not to be confused with a court’s ability to award a spouse “exclusive occupancy” of the marital residence for a period of time post-divorce. Domestic Relations Law §§ 234 and  236B.f.

New York recognizes a duly-registered domestic partnership between couples who choose not to marry.  To be eligible, both parties must be at least 18 years of age, not married to another party, not related by blood, and living together on a continuous basis.  Registering a domestic partnership involves applying with the appropriate local government office. Certain limited rights are conferred on domestic partnerships, for example, the right to be covered by the other party’s medical insurance benefits, the right to visit a partner in the hospital and made medical decisions on his/her behalf, and the right to take family medical leave to care for an ill partner.  However, a domestic partnership does not confer property rights or rights to financial support upon the dissolution of the partnership (which is achieved simply by one party filing a termination statement with the same office where the partnership was registered).

Unmarried couples do not have the same rights and protections as married couples.  Thus, if an unmarried couple’s relationship ends, there is no right to equitable distribution of property acquired during their relationship, and they divide only assets that were acquired in joint names, if any.  This may, for example, involve an action for partition when dealing with a jointly-titled residence.

Nor are there any rights to financial support when an unmarried couple breaks up akin to spousal maintenance that would apply if a couple had been married.

If a couple is merely separated, e.g., they are no longer physically living together, neither parent has a superior right to custody or access until such time as those issues are resolved by agreement or court order.

It does not make a difference if the parents were never married.

New York has jurisdiction over child custody and access if it is the child’s “home state,” as that term is defined in the Uniform Child Custody and Jurisdiction Act (“UCCJEA”), codified at Domestic Relations Law § 75-a(7):  “Home state means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.  In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned.”

There is no presumption in New York of “joint custody” of children.  Rather, pursuant to Domestic Relations Law § 240(1)(a), the Court may make interim and post-divorce awards of custody and visitation (i.e., “access”) based on the “circumstances of the case and of the respective parties and the best interests of the child.”  A court can direct which parent has decision-making authority for the children in major areas (e.g., with respect to medical treatment, educational issues, extracurricular activities, and religious upbringing) as well as determine how much time a child will spend in each parent’s home.

Pursuant to Domestic Relations Law § 240(1)(a-3), a court in a custody dispute may appoint a neutral “forensic evaluator” (a psychiatrist, psychologist, or social worker) to evaluate and investigate the parties and children, the cost of which is borne by the parties in whatever proportion is ordered by the court.  The forensic evaluator usually meets with the parents and children several times, individually as well as each parent with the child(ren), often over a period of several months, and submits a written report.  Typically such reports contain substantial hearsay and are not admissible in evidence at trial absent a stipulation between the parties.  However, the forensic evaluator can be called to testify at trial and is subject to cross-examination.  In addition, parties may call their own forensic experts to testify to present different conclusions than that of the court-appointed forensic evaluator and/or to critique his/her conclusions.

In some cases, in particular high-conflict matters, a court may appoint an attorney for the child “”AFC”), who will meet with the child and advocate for his/her position with counsel and the Court.  An AFC may substitute judgment for that of their client in certain situations, if the child is too young to exercise mature judgment or is suffering from another impairment.  The fees of the AFC are paid by the parties in whatever proportion is ordered by the court.

The standard for relocation in New York is set forth in Tropea v Tropea, 87 N.Y.2d 727 (1996).  This decision by the Court of Appeals (New York’s highest appellate court), held that while the rights of the respective parents must be taken into consideration, the best interests of the child must be accorded the greatest weight.  The factors to be considered are: (a) each parent’s reasons for seeking or opposing the move; (b) the quality of the relationships between the child and the custodial and noncustodial parents; (c) the impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent; (d) the degree to which the custodial parent’s and the child’s life may be enhanced economically, emotionally, and educationally by the move; and (e) the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements.

Ultimately, it is for the court to determine, based on all of the proof, whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child’s best interests.

In practice, relocation, even a nearby move from city-to-suburb (much less to another state or country), is denied more often than it is granted.  Many divorcing couples attempt to anticipate this issue in their settlement agreements by including a radius clause permitting, for example, moves of “no more than X miles” from the primary custodial parent’s current residence, or allowing a relocation only to specific cities or towns.  However, even the inclusion of such a clause in the parties’ settlement agreement is not dispositive.

The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) is codified in New York in Article 5-A of the Domestic Relations Law, and provides a mechanism to obtain and enforce orders of custody and access across state lines within the United States as well as across international borders.

A foreign order may be registered with the New York court pursuant to Domestic Relations Law § 77-d by filing: (a) a letter or other document requesting registration; (b) two copies, include one certified copy, of the determination sought to be registered and a statement under penalty of perjury from the person seeking registration that the order has not been modified; and (c) the name and address of the person seeking registration and the other parent.  Upon receipt of the foregoing documents, the court will cause the determination to be filed as a foreign judgment and will serve notice upon the other parent and provide them with an opportunity to contest the registration.  If the other parent seeks to contest the validity of the order in question, they must request a hearing within twenty days after service of the notice.  At that hearing, the court will register the order unless the parent contesting same establishes that:  the issuing court did not have jurisdiction; the order sought to be registered has been vacated, stayed, or modified; or that he/she was entitled to notice in the proceedings before the court that issued the order but did not receive such notice.

The Child Parent Security Act (“CPSA”) became effective on February 15, 2021 and allows paid gestational surrogacy in New York State pursuant to written agreement between the intended parent(s) and the gestational surrogate.

The requirements for intended parents are as follows: (a) at least one intended parent in a surrogacy agreement must be a United States citizen or lawful permanent resident of the United States, as well as a New York resident for at least six months; (b) intended parents must be represented by independent legal counsel; (c) an intended parent may be a single adult or, if a couple, may be married or in an intimate relationship; (d) if the intended parents are providing compensation, the funds must be placed in escrow and the agreement must also delineate how medical expenses will be covered.

The requirements for a gestational surrogate are as follows:  (a) she must be at least 21 years of age; (b) she must be a United States citizen or a lawful permanent residence; (c) she must be a lawful New York resident for at least six months if one of the intended parents is not a New York resident; (c) she has not provided the egg for gestation; (d) she has completed a medical evaluation; (d) she has given informed consent; (e) she has been represented by independent legal counsel along with her spouse, if applicable; (f) she must have or will obtain comprehensive medical insurance and life insurance policies that take effect prior to taking fertility medication or beginning any embryo transfers, and such coverage may be paid for by the intended parents.

There is no formal non-court dispute resolution program in New York.  Couples are free to engage in private mediation and reach a resolution of their disputes relating to both financial and child-related issues.