Frequently Asked Questions About Divorce and Family Law on Long Island

Divorce and family law cases rarely begin with just one question. A person may initially want to know how to file for divorce, only to realize that decisions must also be made about children, the marital home, retirement savings, support, business interests, or responsibility for debt.

The following answers explain how New York state law generally approaches the questions our attorneys most often hear from clients in Nassau County and Suffolk County. They provide a starting point, but they cannot determine what will happen in a particular case without a careful review of the facts.

 

Starting a Divorce in New York

What is a divorce in New York?

A divorce is a court proceeding that legally ends a marriage. In New York, divorce cases are heard exclusively in Nassau County Supreme Court or Suffolk County Supreme Court. A divorce judgment may also resolve property division, marital debt, spousal maintenance, child custody, parenting time, child support, counsel fees, and other issues arising from the marriage.

The spouse who begins the case is called the plaintiff. The other spouse is the defendant. These labels do not determine who will receive custody, property, support, or any other favorable outcome. Learn more about the divorce process here.

 

What should I do first if I am considering divorce?

Before announcing your plans or making major financial changes, gather information. Locate recent tax returns, bank and investment statements, retirement account records, mortgage documents, credit-card statements, business records, insurance policies, and any prenuptial or postnuptial agreement.

Avoid transferring money, hiding assets, changing beneficiaries, moving out of the marital home, or involving children in the dispute without first understanding the possible consequences. An early conversation with a divorce attorney can help you identify immediate risks and decide what should — and what should not — happen next.

 

Do I need a reason to get divorced in New York?

Most New York divorces use the no-fault ground that the marital relationship has broken down irretrievably for at least six months. This does not mean the divorce must have been pending for six months. It means one spouse states under oath that the relationship has been irretrievably broken for that period.

New York also retains fault-based grounds, but proving fault is usually unnecessary and may increase the cost and conflict without materially changing the financial result.

 

Do I have to meet a residency requirement?

Yes. The applicable residency period depends on where the spouses lived, where they married, and where the grounds for divorce occurred. For example, the requirement may be met when either spouse has lived continuously in New York for at least two years before the action begins. A one-year period may be sufficient when accompanied by another New York connection, such as a New York marriage or the spouses having lived here as a married couple.

New York Courts provides the complete residency requirements here.

 

Can I get divorced if my spouse refuses to cooperate?

A spouse cannot permanently prevent a divorce by refusing to sign papers or participate. After proper service, the non-responsive spouse may be placed in default. The filing spouse must still submit the required evidence and proposed terms, and the court must determine that the legal requirements have been met.

If your spouse participates but disputes custody, support, property division, or another issue, the case becomes contested. Those disagreements may be resolved through negotiation, mediation, motion practice, or trial.

 

Can I get divorced if I cannot locate my spouse?

Possibly, but you must make legally sufficient efforts to locate and serve your spouse. If ordinary personal service cannot be completed despite diligent efforts, the court may authorize an alternative form of service. Because inadequate service can invalidate the proceeding, this situation should be addressed before attempting publication or another substitute method.

 

Contested, Uncontested, Mediated and Collaborative Divorce

What is the difference between a contested and uncontested divorce?

A divorce is uncontested when both spouses agree to end the marriage and have resolved every issue that must be included in the judgment. These issues may include property, debts, maintenance, custody, parenting time and child support.

A divorce is contested when the spouses disagree about at least one required issue or when one spouse does not participate. A case that begins as contested can become uncontested after the parties negotiate and sign a settlement agreement.

 

Does a contested divorce always go to trial?

No. Contested means that unresolved disagreements exist; it does not necessarily mean a trial will occur. Many contested cases settle after financial disclosure, attorney negotiations, mediation, court conferences, or motion practice.

When important issues remain unresolved, the judge may conduct a hearing or trial and decide them. Preparing a case as though it may be tried can also improve the prospects for a fair settlement.

 

What happens during divorce litigation?

A litigated divorce generally begins with filing and service of the divorce papers. The parties may then address temporary arrangements, exchange financial information through discovery, obtain appraisals or expert reports, attend court conferences, negotiate, and present motions when interim decisions are needed.

If settlement does not resolve every issue, the court conducts a trial. Each side presents evidence and testimony, and the judge decides the disputed terms of the divorce.

 

What is divorce mediation?

Divorce mediation is a structured negotiation in which a neutral mediator helps spouses work toward their own agreement. Discussions may address property, debt, maintenance, child support, custody, parenting schedules and other family concerns.

The mediator does not act as a judge and cannot impose a result. Each spouse should understand the financial information being exchanged and may obtain independent legal advice before signing a final agreement.

 

Is mediation appropriate when the spouses strongly disagree?

Disagreement does not automatically make mediation impossible. A capable mediator can help spouses identify priorities, exchange information and consider compromises.

Mediation may be inappropriate when domestic violence, intimidation, coercive control, concealed assets, an extreme power imbalance, or an unwillingness to provide financial disclosure prevents meaningful participation. New York Courts likewise cautions that alternative dispute resolution may not be suitable where there is a history or fear of abuse.

 

What is the difference between mediation and collaborative divorce?

In mediation, one neutral professional facilitates negotiations, while each spouse may consult a separate attorney outside the sessions.

In a collaborative divorce, each spouse has a collaboratively trained attorney participating in the negotiations. Other neutral professionals, such as a financial specialist or family professional, may join the process. The participants agree to resolve the matter outside court. If the collaborative process fails and litigation becomes necessary, the collaborative attorneys generally withdraw and the spouses retain litigation counsel.

 

Property, Homes, Retirement Accounts and Debt

What am I entitled to receive in a New York divorce?

There is no universal amount or automatic entitlement. The outcome depends on the marital and separate property involved, each spouse’s income, the length of the marriage, contributions to the marriage, parenting arrangements, support considerations, contractual agreements and other facts.

The principal financial issues usually include equitable distribution of marital property and debt, spousal maintenance, child support, and responsibility for professional and expert fees.

 

Does equitable distribution mean everything is divided equally?

No. Equitable distribution means marital property is divided fairly, which does not always mean equally. Courts consider numerous statutory factors when determining an equitable result.

Spouses may negotiate their own division rather than asking a judge to decide. A properly drafted settlement can allow for solutions that a court might not impose, such as trading one spouse’s interest in the home for a different asset.

 

What is marital property?

Marital property generally includes assets acquired by either spouse during the marriage and before the commencement of the divorce action or execution of a qualifying agreement, regardless of whose name appears on the account or title.

It may include earnings, real estate, retirement benefits accumulated during the marriage, investment accounts, business interests, vehicles and personal property. Marital debt can also be allocated between the spouses.

 

What is separate property?

Separate property may include assets owned before the marriage, inheritances received individually, certain gifts from someone other than the spouse, qualifying personal-injury recoveries, and property defined as separate by a valid agreement.

Separate property can lose some or all of its separate character if it is commingled, retitled, transferred to joint ownership, or cannot be traced. Appreciation in separate property can also present marital claims when the other spouse contributed to its increase in value.

 

Is a professional license or degree divided in divorce?

For divorces commenced on or after January 25, 2016, a professional license, academic degree, celebrity goodwill, or enhanced earning capacity is not itself marital property subject to valuation and division.

The court may, however, consider one spouse’s direct or indirect contributions to the other spouse’s career or enhanced earning capacity when dividing marital property or deciding maintenance.

 

What happens to the marital home?

The home may be sold, transferred to one spouse, or temporarily retained under an agreement. The result depends on ownership, equity, mortgage obligations, separate-property contributions, other marital assets, and the needs of any children.

Remaining in the home during the case does not necessarily determine who will ultimately own it. Before agreeing to keep the house, a spouse should consider refinancing ability, carrying costs, taxes, maintenance and the loss of access to other assets that may be exchanged for the other spouse’s equity.

 

Are retirement accounts divided in divorce?

The marital portion of a pension, 401(k), 403(b), IRA or other retirement benefit may be divided. Benefits earned before the marriage or after the applicable cutoff date may remain separate.

Employer-sponsored plans often require a Qualified Domestic Relations Order or another specialized court order. A divorce judgment alone may not complete the transfer, so the necessary retirement documents should be prepared and implemented promptly.

 

Are marital debts divided too?

Yes. Debt incurred for legitimate marital purposes can be allocated between the spouses, even when only one spouse’s name appears on the account. Courts and negotiating parties consider why the debt was incurred, who benefited, and whether either spouse dissipated marital resources.

A divorce agreement does not automatically release either spouse from obligations owed to a lender. Refinancing, account closure, indemnification provisions and deadlines may be necessary to protect both parties.

 

Spousal Maintenance

What is spousal maintenance?

Spousal maintenance, commonly called alimony, is money one spouse may be required to pay the other during or after a divorce. Temporary maintenance applies while the case is pending. Post-divorce maintenance begins after the divorce.

New York uses statutory calculations as a starting point, subject to income limitations and permitted deviations. The result depends on the parties’ incomes and other statutory factors; maintenance is not automatically awarded in every divorce.

 

How long does spousal maintenance last?

The duration depends on the circumstances and the terms of the judgment or settlement. New York law includes an advisory schedule tied to the length of the marriage, but the court considers additional factors and may select a different duration.

Maintenance can end upon a specified date or event. Depending on the order, termination events may include death, remarriage of the recipient, or another condition written into the agreement or judgment.

 

What should I do if I can no longer afford court-ordered maintenance?

Do not simply stop paying. Until the order is modified, the existing obligation generally remains enforceable, and unpaid amounts can accumulate.

A substantial, qualifying change in circumstances may support a request for modification, but the available relief depends on the language of the agreement or judgment and the reason for the income change. Loss of employment, illness, retirement or a significant change in the recipient’s circumstances should be addressed promptly with documentation and legal advice.

 

Child Custody and Parenting Time

How does a New York court decide child custody?

The controlling standard for child custody is the best interests of the child. Courts do not automatically favor mothers or fathers. Relevant considerations may include each parent’s ability to care for the child, the child’s relationship with each parent, stability, health, safety, domestic violence, cooperation, past caregiving and the child’s needs.

Legal custody concerns major decisions. Physical custody concerns where the child lives. Either form may be sole or shared depending on the circumstances. 

 

What is the difference between legal custody and physical custody?

Legal custody concerns authority over major decisions involving education, medical treatment, religion and other significant aspects of the child’s upbringing.

Physical custody concerns the child’s residence and parenting schedule. Parents can share legal custody even when the child spends more time in one home. Conversely, an extensive parenting schedule does not necessarily require joint decision-making when the parents cannot communicate safely or productively. Read our article on the types of child custody.

 

Does joint custody eliminate child support?

Not necessarily. A shared or nearly equal parenting schedule does not automatically eliminate child support. New York’s child-support analysis considers parental income and which parent is treated as the custodial parent for support purposes.

In some equal-time arrangements, the higher-earning parent may be treated as the noncustodial parent for the basic calculation. The exact result depends on the schedule, income, additional expenses and any legally sufficient agreement or deviation.

 

Can a custody or child-support order be changed?

Yes, under appropriate circumstances. Custody modification generally requires a sufficient change in circumstances and a showing that the proposed change serves the child’s best interests.

Child support may be modified based on statutory grounds, the terms of the existing agreement, a substantial change in circumstances, or qualifying changes in income or time since the order. The rules differ for agreements executed before and after certain statutory changes, so the underlying order must be reviewed.

 

Child Support

How is child support calculated in New York?

To calculate child support, New York generally begins with the parents’ combined child-support income and applies a statutory percentage:

17% for one child
25% for two children
29% for three children
31% for four children
At least 35% for five or more children

The obligation is allocated according to each parent’s share of combined income. Child care, un-reimbursed health expenses and, in some cases, educational costs are addressed separately. Application above the statutory income cap is discretionary. 

 

How long does child support continue?

In New York, parents generally have a duty to support a child until age 21 unless the child becomes emancipated earlier. A settlement may provide support or responsibility for particular expenses beyond age 21, especially for college or other agreed needs.

Custody jurisdiction is different: New York custody and parenting-time orders generally apply only until the child turns 18.

 

What happens if a parent does not pay child support?

The recipient can seek enforcement through Family Court, Supreme Court or the Support Collection Unit, depending on the order and payment arrangement. Enforcement measures may include income withholding, money judgments, tax-refund interception, suspension of licenses, contempt findings and other remedies.

A parent who cannot pay should pursue a lawful modification rather than allow arrears to accumulate. Courts generally cannot retroactively reduce support that became due before a modification request was filed.

 

Family Court and Orders of Protection

What cases are heard in New York Family Court?

Nassau County Family Court and Suffolk County Family Court handle family law matters such as child custody, parenting time, child support, spousal support, paternity or parentage, family offenses, orders of protection, guardianship, adoption, and child abuse or neglect proceedings.

Family Court cannot grant a divorce. Only the New York Supreme Court can legally terminate a marriage. Related family issues may sometimes be heard in either court depending on whether a divorce action is pending and what relief is requested.

 

What is an order of protection?

An order of protection is a court order restricting the conduct of someone who has harmed, threatened or harassed another person. Depending on the circumstances, it may direct someone to stay away, stop communicating, leave a residence, surrender firearms, or comply with other safety-related conditions.

Family Court, criminal court and Supreme Court can issue orders of protection. The correct court and procedure depend on the parties’ relationship, whether criminal charges exist and whether a divorce is pending.

 

Where should I seek help if I am in immediate danger?

Call 911 if you or a child is in immediate danger. Legal strategy and website information should never delay emergency assistance.

Someone experiencing domestic violence may also seek help through law enforcement, a domestic-violence organization, Family Court, criminal court, or an attorney. Safety planning should come before negotiations about money, property or parenting arrangements.

 

Divorce Costs and Choosing an Attorney

How much does a divorce cost on Long Island?

There is no reliable single price. The cost of your divorce is driven primarily by the number and complexity of disputed issues, the quality of financial disclosure, the spouses’ willingness to negotiate, the need for court appearances, and whether appraisers, forensic accountants, custody professionals or other experts are required.

An uncontested divorce with a complete, legally sound agreement generally costs substantially less than a litigated matter. Extremely low advertised prices may cover only document preparation and exclude filing fees, negotiations, revisions, court appearances or individualized legal advice.

 

Can my spouse be required to pay my attorney’s fees?

Possibly. New York law creates a rebuttable presumption that counsel fees should be awarded to the less-monied spouse in a divorce, although the court retains discretion over the amount and timing.

The purpose is to help place the spouses on more equal footing during the case. Courts may also consider litigation conduct, the financial circumstances of both parties and whether either spouse caused unnecessary legal expense.

 

How do I choose the right divorce attorney?

Look beyond advertising claims. Ask how much of the attorney’s practice involves New York divorce and family law, whether the attorney has handled cases with issues similar to yours, who will manage the day-to-day work, and how strategy and billing decisions are communicated.

The right attorney should be able to explain both settlement and litigation options, identify risks without exaggerating them, and give you candid advice—even when that advice is not what you hoped to hear.

 

Do I need a divorce attorney if my spouse and I agree?

Not every divorce legally requires counsel, but an agreement can create obligations involving property, retirement benefits, taxes, maintenance, custody and support that last for years. A seemingly simple error can be difficult or impossible to correct after judgment.

At minimum, each spouse should consider obtaining independent legal advice before signing a settlement. One attorney cannot represent both spouses because their legal interests are separate.

 

Discuss Your Questions With a Long Island Divorce and Family Law Attorney

General answers can help you understand the framework, but they cannot show how New York law will apply to your income, children, property, debts or family circumstances.

The Long Island Divorce & Family Law Group, Hornberger Verbitsky, P.C. represents clients in divorce and family law matters throughout Nassau County and Suffolk County.

Call 631-923-1910 for a Complimentary Matter Review meeting.