How NY Divorce Laws Might Affect YOU
No-Fault Divorce in New York State
October 2013 marks three years since NY State changed its divorce laws and became the last state to allow no-fault divorce. While no-fault divorce dominated the headlines, changes made at the same time in temporary spousal maintenance and other areas were also significant.
Are There More Divorces?
People wonder whether no-fault divorce has increased the number of divorces. The answer to that is yes, but it has not increased the number of marriages that end. Many couples are now filing their agreement first as a divorce rather than as a legal separation, so the count of divorces has increased. In the past, to avoid having to use uncomfortable or even nasty fault language, couples opted to file a legal separation, wait a year, and then convert the agreement to a divorce.
Legal Separation Is Still an Option
Legal separation (a minimum one-year waiting period) via a separation agreement is still available as a no-fault ground. Some couples file a legal separation rather than a divorce to extend health care benefits for a spouse or for tax reasons. For the majority of private companies and virtually all city, county, and New York State employees, spousal health insurance options end only after the divorce decree is signed. If health insurance is not an issue, then many folks choose no-fault divorce and the closure that follows.
There are other practical reasons why divorce may be preferred over legal separation that have to do with retirement distributions and real estate.
The other major 2010 change in NYS divorce law was the introduction of a mathematical calculation regarding spousal maintenance (SM), sometimes referred to as alimony. Prior to the formula, alimony was calculated using other financial measures. Often the budget of each party was considered and the opportunity for each person to live in a manner comparable to before the divorce for a period of time. These things are still considered, but now in the shadow of the formula. The formula has two mathematical calculations, and the lower annual result is presumed to be the “right” amount of SM.
Currently, a shortcut exists for determining whether a person is a candidate for alimony. If the difference between the incomes of each party is greater than 67%, then the spouse with the lesser income is eligible for alimony. For example, if the husband makes $100,000 per year and the wife makes $67,000, there will not be an alimony allocation for the wife. If the wife makes $40,000, there will be an allocation.
In divorce mediation, the conversation about SM considers lots of factors, and this formula is just one. Like child support, which has a precise calculation, there are many reasons why deviations from the formula are acceptable.
New York State Resources About Divorce
The NYCourts.gov web site has a page that shows “What’s New in Matrimonial Legislation and Court Rules.” The page also has links to “Temporary Maintenance Tools” and “Child Support Resources” with up-to-date information.
The New York State Parent Education and Awareness Program is designed to educate divorcing or separating parents about the impact of their breakup on their children.
If you are considering divorce, please familiarize yourself with current laws in New York State and consult a divorce attorney to discuss the specifics of your situation. The information provided here is not intended as legal advice.
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