Separation Agreements and Decrees:
Living apart, without an agreement or court order, is not recognized by New York as a ground for divorce. There are two means in which spouses may live apart and qualify for a divorce. 1) A separation agreement, where the parties privately contract and provide for child custody and support, visitation, distribution of property, and spousal support. 2) A court awarded separation decree, granted on the same grounds for divorce. However, the abandonment may be for less than a year and “non support” is a ground.
Equitable Distribution of Property
New York has the philosophy that a marriage, especially a long term one, is a partnership. Both marital assets and debts will be shared equitably, though not necessarily evenly. This means that a spouse who has been at home with the children is seen as contributing equally to the financial success of the partnership as one who has worked outside.
Assets are either “marital” or “separate”. Marital property is everything acquired during the marriage except inheritance, gifts from third persons, personal injury awards and property obtained after the divorce began. It is irrelevant who holds title to the property since all assets acquired during the marriage are partnership property. Even separate assets may be marital if they were commingled with marital assets or if the separate property owner “worked” on that asset during the marriage.
Child Custody, Visitation, and Support
“Legal custody” is the right of a parent to make decisions regarding the child’s health, education, religion, and discipline, while “physical custody” is the right to reside with the children.
Courts decide custody by determining the “best interests” of the child and considering (1) a parent’s fitness; (2) the relationship between parent and child; and (3) influences on the child’s growth and development. A judge may weigh the preference of a child based on age and maturity. Prior to the age of twelve a child’s choice has limited influence. Courts are very reluctant to separate siblings in the absence of an overwhelming need. New York prohibits determinations based on gender and men are increasingly being granted custody.
Although sole custody is favored in New York, joint custody is granted when the parties state they can cooperate.