Divorce in New York: Equitable Distribution, Maintenance, and Child Custody Explained

New York is a no-fault divorce state. Under DRL 170(7), you can obtain a divorce by swearing under oath that the marriage has been irretrievably broken for at least six months, but the divorce is not final until every financial issue and any custody question is resolved. New York divides what you built during the marriage by equitable distribution under DRL 236(B)(5), which means a fair division, not an automatic fifty-fifty split. Spousal support, called maintenance, is set largely by a statutory formula, and custody is decided by what is in the best interests of the child. Here is how each piece works.

Why divorce is complicated on Long Island

Most Long Island divorces are not complicated because the spouses hate each other. They are complicated because of what the couple owns. A house in Nassau or Suffolk that has appreciated for years, retirement accounts and pensions, a family business, and sometimes property that one spouse owned before the marriage or inherited during it. Untangling those assets fairly is the real work of a New York divorce, and the rules are specific.

The good news is that New York law is largely formula-driven on the money questions, which makes outcomes more predictable than people expect. The areas that turn on judgment, custody and the classification of property, are where experienced counsel matters most.

Do I need a reason to divorce in New York?

No. Since 2010, New York has allowed no-fault divorce. Under DRL 170(7), one spouse only has to state under oath that the marriage has been irretrievably broken for a period of at least six months. The other spouse cannot stop the divorce by refusing to agree that the marriage is over. What the other spouse can do is litigate the financial and custody issues, because the divorce will not be granted until those are settled or decided by the court.

New York still has fault grounds, listed in DRL 170, including cruel and inhuman treatment, abandonment, and adultery, but they are rarely used now because no-fault is simpler and avoids a trial over who did what. Before you can file at all, you must meet the residency requirement in DRL 230, which generally requires that you or your spouse have lived in New York for a continuous period before filing, with the exact period depending on where you married and where the marriage took place.

How is property divided in a New York divorce?

New York is an equitable distribution state, not a community property state. Under DRL 236(B)(5), the court divides marital property equitably, meaning fairly, which is not the same as equally. There is no rule that everything is split down the middle.

The first step is classification. Marital property is, broadly, everything either spouse acquired during the marriage, no matter whose name is on it. That includes the house, bank and brokerage accounts, the portion of retirement accounts and pensions earned during the marriage, and the value built up in a business during the marriage. Separate property, which is generally not divided, is what a spouse owned before the marriage, plus most inheritances and gifts received from someone other than the spouse, and compensation for personal injuries.

Once property is classified, the court divides the marital portion using the statutory factors in DRL 236(B)(5)(d). Those factors include the length of the marriage, the age and health of each spouse, the income and property each brought in and leaves with, the future financial circumstances of each, whether one spouse gave up a career to raise children or support the other’s career, and the value of homemaking contributions. The marital home is often the central issue, and the options usually come down to one spouse buying out the other, selling and splitting the proceeds, or one spouse staying with the children for a defined period before a later sale. Retirement accounts and pensions earned during the marriage are typically divided by a separate court order called a qualified domestic relations order.

What is separate property, and can it become marital?

This is where many Long Island divorces are won or lost. Separate property is protected, but the protection is easy to lose. If you inherit money and deposit it into a joint account, or use it to renovate the marital home, you have commingled it, and a court may treat it as marital property subject to division. The same can happen with a house you owned before the marriage if marital funds paid the mortgage or improved it.

There is also the question of appreciation. If separate property grew in value during the marriage purely on its own, that growth usually stays separate. But if it grew because of the active efforts of either spouse, for example a business one spouse owned before the marriage that both spouses helped build, the increase in value during the marriage can be partly marital. Keeping separate property genuinely separate requires care, and proving its separate character in a divorce requires documentation.

How much is spousal maintenance (alimony) in New York?

Spousal support in New York is called maintenance, and since 2015 and 2016 it is largely set by a statutory formula in DRL 236(B)(6). The formula uses the incomes of both spouses up to a statutory income cap that the state adjusts periodically for inflation, and it produces a guideline amount. There are two slightly different calculations depending on whether the paying spouse is also paying child support.

Maintenance comes in two forms. Temporary maintenance is paid while the divorce is pending. Post-divorce maintenance is paid after the judgment. The law also provides an advisory schedule for how long post-divorce maintenance should last, tied to the length of the marriage, so that longer marriages generally support longer maintenance terms. Courts can deviate from both the guideline amount and the advisory duration when the formula result would be unjust or inappropriate, based on factors listed in the statute such as the health and earning capacity of each spouse and the standard of living during the marriage. New York no longer favors indefinite, permanent alimony in most cases.

How does child support work in New York?

Child support is governed by the Child Support Standards Act, found in DRL 240(1-b) and, in Family Court, FCA 413. It is formula-driven. The court combines both parents' incomes, applies a percentage based on the number of children, and the non-custodial parent pays their pro rata share.

The percentages are 17 percent of combined parental income for one child, 25 percent for two children, 29 percent for three, 31 percent for four, and no less than 35 percent for five or more. The formula applies to combined income up to a statutory cap that the state adjusts periodically, and a court has discretion over how to treat income above that cap. On top of the base support, parents share certain add-on expenses in proportion to their incomes, including child care that lets a parent work, the children’s health insurance and unreimbursed medical costs, and in some cases educational expenses. Child support and custody are decided separately from the property division, and a parent cannot trade away the children’s support.

How is custody decided in New York?

New York decides custody by one standard: the best interests of the child. There is no automatic preference for the mother or the father. Custody has two parts. Legal custody is the authority to make major decisions about the child’s health, education, and religion, and it is often shared as joint legal custody. Physical or residential custody is where the child primarily lives.

In weighing best interests, a court considers which parent has been the primary caregiver, the stability each home offers, each parent’s ability to meet the child’s needs, the willingness of each parent to support the child’s relationship with the other, any history of domestic violence, and, depending on the child’s age and maturity, the child’s own preference. In contested cases the court often appoints an attorney for the child to represent the child’s position, and sometimes orders a forensic evaluation. When one parent wants to move away with the child, a relocation request is judged by its own best-interests analysis, and a parent cannot simply move a child out of the area without permission or an agreement.

What about orders of protection and family offenses?

Family law in New York also covers safety. A person who has been subjected to certain acts by a spouse, former spouse, family member, or someone they share a child with can seek an order of protection through a family offense proceeding under Article 8 of the Family Court Act. Family Court and the criminal courts have concurrent jurisdiction, meaning the same conduct can lead to both a Family Court order of protection and a criminal case, and an order of protection can also be issued as part of a divorce in Supreme Court. If safety is a concern, this is the first issue to raise, not the last.

How long does a New York divorce take, and what does it cost?

It depends entirely on whether the case is contested. An uncontested divorce, where both spouses agree on everything and sign a settlement, can be completed in a few months, limited mostly by court processing times. A contested divorce, where property, support, or custody is fought over, commonly takes one to two years and sometimes longer, because it moves at the pace of the Nassau or Suffolk County Supreme Court calendar and involves financial disclosure, discovery, motions, and possibly a trial.

Costs track that same divide. An uncontested matter is relatively modest. A contested case costs more because of the time involved, and custody disputes that require a forensic evaluation and an attorney for the child add expense. Many couples reduce both time and cost through mediation or a negotiated settlement, which resolves the issues by agreement rather than by trial. No attorney can promise a particular outcome on custody or money. What good counsel does is value the assets correctly, apply the support formulas accurately, and protect your position on the issues that turn on judgment.

How matrimonial issues overlap with other areas

Divorce rarely stands alone. The marital home is usually the largest asset, so questions of real estate and, when payments fall behind during a separation, foreclosure defense often run alongside the divorce. A divorce should also trigger a review of an estate plan, because beneficiary designations and wills usually need updating. And if a spouse dies while a divorce or a related dispute is pending, the matter can shift into trust and estate litigation. Handling these together keeps the strategy consistent.