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Divorce​​

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• How long does it take to get divorced in New York State?​

The ​length of a divorce matter in New York State can vary greatly depending on the particular circumstances of each case. An uncontested divorce between two parties in agreement on the issues can often be wrapped up in a few months. However, high conflict contested divorces between hostile parties or those involving high assets or contested custody can take significantly longer to resolve, from approximately 6 months to several years depending on the complexities of the case. ​​​

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For more information, please see our blog post titled How Long Does It Take To Get Divorced in New York State?

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• What are the grounds for divorce in New York State?

New York is a no-fault divorce state, which means that neither spouse has to prove wrongdoing to get a divorce. You can file based on an “irretrievable breakdown” of the marriage lasting six months or more. ​To have a divorce granted on the ground of "irretrievable breakdown, only one spouse needs to state under oath that the marriage has been broken beyond repair for at least six months. The court does not require proof of misconduct or fault, and it will generally accept this statement as sufficient.

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For more on how no-fault divorces are handled in New York, please see our blog post titled What is a No-Fault Divorce in New York?

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• What are the residency requirement for divorce in New York State?

Before you file for a divorce in New York State, you must meet the residency requirements. There are a few ways to do this:​

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• Either you or your spouse have been living in New York State continuously for at least two years before the divorce case is started.​

• Either you or your spouse have been living in New York State continuously for at least one year before the divorce case is started and

  • (1) you got married in New York State, or

  • (2) you lived in New York State as a married couple, or

  • (3) the grounds for your divorce happened in New York State;​​

• Both you and your spouse are residents of New York State on the day the divorce is started and the grounds for your divorce happened in New York State.​​​​

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For more information, please see our blog post titled Understanding Residency Requirements for Divorce in New York State

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• What court handles divorces in New York State?

Divorce proceedings, unlike other family matters, are handled exclusively in New York's Supreme Court, not Family Court. This is because divorce involves the dissolution of marriage, which requires the broader equitable powers of Supreme Court. Ancillary issues like child custody, support, and property division can be addressed in the same action. A divorce action must be brought in a county where at least one of the parties. To file for divorce, at least one spouse must also meet New York's residency requirements.

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For more information, please see our blog post titled How Venue is Determined in New York State Courts: A Focus on Family Court and Divorce Proceeding

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• What is the difference between a contested and uncontested divorce?

An uncontested divorce occurs when both spouses agree on all major issues related to the dissolution of their marriage. This includes division of property and debts, child custody and visitation, child support, spousal maintenance (alimony), and any other relevant matters. However, uncontested divorces require cooperation. If there's any disagreement, it could shift to a contested matter.​

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In contrast, a contested divorce happens when spouses cannot agree on one or more key issues, requiring the court to intervene and make decisions. This might involve disputes over asset division, custody arrangements, or support payments. While more adversarial, contested divorces ensure that your rights are protected through formal court proceedings, which can be crucial in high-stakes situations like unequal asset distribution or child welfare concerns.

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For more information on the differences between contested and uncontested divorces and the process for each please see out blog post titled Contested vs. Uncontested Divorce in New York: Key Differences

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• Does it matter who files first?

In New York, the spouse who files for divorce first is called the "plaintiff," while the other spouse becomes the "defendant." These are simply legal designations that identify who initiated the action. The plaintiff files a Summons with Notice or Summons and Complaint to begin the divorce process, and the defendant then has an opportunity to respond.

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It's important to understand that being the plaintiff doesn't give you inherent advantages in how the court divides assets, determines custody, or awards support. New York courts are required to make decisions based on statutory factors and the best interests of any children involved, regardless of who filed first.​​​​ From a strictly legal standpoint, filing first in New York does not automatically provide any special rights or entitlements. Both spouses have the same ability to present their case, seek equitable distribution of assets, and request custody or spousal support. The courts evaluate each issue based on facts, fairness, and the law, not on who initiated the process. However, filing first may provide some procedural and strategic advantages worth considering.

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For more details, please see our blog post titled Does It Matter Who Files For Divorce First?

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• What are the "Automatic Orders"?

In New York, when a divorce case is filed and served, a set of rules called Automatic Orders immediately go into effect. These orders are designed to preserve the status quo and prevent either spouse from making major financial or property changes while the divorce is pending. Automatic Orders generally prohibit either spouse from:​​​​

• Selling, transferring, or hiding property such as bank accounts, real estate, investments, or personal property, except in the normal course of business or to pay for regular household expenses

• Incurring unreasonable debts

• Changing beneficiaries on life insurance, pensions, or retirement accounts

• Removing the other spouse or children from existing health, dental, vision, or other insurance coverage

• Relocating minor children outside of the state without consent or court approval

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These rules remain in effect until the divorce is finalized or the court modifies them. Violating Automatic Orders can have serious consequences, including penalties or sanctions from the court.

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To learn more please see our blog post titled Understanding Automatic Orders in New York Divorce Cases

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• What is the difference between marital and separate property?

How property is divided depends on whether it is classified as marital property or separate property under the state’s equitable distribution law.

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Marital Property is any property acquired by either spouse during the marriage, regardless of whose name is on the title, and are considered to be assets of the marriage. Marital property includes:​​​​

• Income earned by either spouse during the marriage

• Real estate purchased while married (even if only in one spouse’s name)

• Retirement accounts, pensions, and 401(k) contributions made during the marriage

• Cars, furniture, and personal property bought with marital funds.

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Marital property is subject to equitable distribution between the parties.

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Separate Property is considered the sole asset of one spouse, not subject to division in divorce. Separate property includes:​​

• Assets owned by either party prior to the marriage

• Inheritances received by one spouse (before or during the marriage)

• Gifts made specifically to one spouse (not to the couple jointly)

• Personal injury compensation

• Property designated as separate in a valid prenuptial or postnuptial agreement. 

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However, complications can arise when separate property is commingled with marital property (for example, inheritance money deposited into a joint account and used for family expenses), as it may lose its separate character and be treated as marital. 

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• How is marital property divided in a New York State divorce?​

In a New York marital property is divided under the state's equitable distribution law, whereby marital assets are divided in a way that is fair, but not always a strict 50/50 split. In making this determination, a judge may considers many factors, including: ​​​

• The length of the marriage

• The age and health of each spouse

• The income and property each brought into the marriage

• Each parties direct (earnings, paying bills, etc.) and indirect contributions (homemaking, raising children, supporting a spouse’s career)

• Who has custody of the children

• Any wasteful dissipation of marital assets

• Any existing agreements between the parties (prenuptial or postnuptial contracts).​

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For a more detailed looked at how equitable distribution is handled in New York State divorces, please see our blog post titled Understanding Property Division in New York Divorces: Equitable Distribution Explained

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• Who gets the house?

In a New York divorce the division of the marital home is guided by the states' equitable distribution law. ​​If the house was purchased during the marriage, it’s typically considered marital property, subject to division. If one spouse owned the house before the marriage or received it as a gift or inheritance, it may be separate property, but even so, any increase in value due to non-market conditions (additions, renovations, improvements, etc.) or contributions (like mortgage payments) during the marriage could be divisible.

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In practice, the primary options for the marital home are:​​​

• One Spouse Keeps It: One spouse may "buy out" the other’s share, based on the home’s appraised value and remaining mortgage.

• Sell and Split Proceeds: The couple may sell the house and divide the proceeds equitably.

• Deferred Sale: In cases involving children, the court may allow the custodial parent to stay in the home until the children reach a certain age, with the sale happening later.

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For more information, please see our blog post titled Who Gets the House in a New York State Divorce?

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• How are retirement accounts and pensions divided in a divorce proceeding in New York State?

In New York, retirement accounts and pensions are considered marital property if they were earned or accrued during the marriage, even if the funds are not immediately accessible. The portion of the account or pension accumulated before the marriage is typically treated as separate property and is not subject to division.

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The division of retirement assets depends on the type of account:​

• Employer-sponsored plans (401(k), 403(b), pensions): These often require a Qualified Domestic Relations Order (QDRO) to legally transfer a portion of the account to the non-employee spouse. A QDRO ensures the funds are transferred without triggering taxes or early withdrawal penalties.

• Individual Retirement Accounts (IRAs) and other personal retirement accounts: These can be divided through a property settlement as part of the divorce judgment. The court may order a direct transfer or offset the value with other marital property.

• Pensions: Defined benefit pensions (which pay a set amount at retirement) and defined contribution plans (which have an account balance) may be divided based on the portion earned during the marriage. Actuarial calculations are often used to determine the marital share.

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It’s also important to note that dividing retirement accounts can involve tax consequences, timing issues, and future changes in value. For these reasons, couples typically need experienced legal and financial guidance to ensure the division is fair, enforceable, and complies with all applicable laws.

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To learn more please see our blog post titled Dividing Retirement Savings and Pensions in a New York Divorce: What You Need to Know

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• How is debt divided in New York State divorces?

New York is an equitable distribution state, which means that marital property and debts are divided fairly, though not necessarily equally, between divorcing spouses. The court considers various factors to determine what constitutes a fair division based on the specific circumstances of each case. This approach applies to both assets and liabilities. Just as the family home or retirement accounts may be divided, credit card balances, mortgages, car loans, and other debts incurred during the marriage are subject to equitable distribution.

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For more information, please see our blog post titled How Debt Is Divided in a New York Divorce

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• How are business interests dealt with in New York State divorces?

In a New York divorce, business interests are subject to the state’s equitable distribution laws, meaning they are divided fairly but not necessarily equally. How a business is handled depends on its nature, ownership, and contributions during the marriage. Here’s an overview:​

• Marital vs. Separate Property: A business started or acquired during the marriage is typically considered marital property, subject to division. If one spouse owned the business before the marriage, it may be separate property, but any increase in value or contributions (e.g., time, money, or effort by either spouse) during the marriage may be divisible.​

• Valuation: Determining the business’s value is critical. This often requires hiring a forensic accountant or business appraiser to assess assets, revenue, liabilities, and market conditions. Valuation methods may include income-based, market-based, or asset-based approaches.

• Division Options:

  • Buyout: One spouse may buy out the other’s share, based on the business’s appraised value, often using other marital assets or payment plans.

  • Co-Ownership: In rare cases, spouses may agree to continue co-owning the business, though this can be complex due to ongoing personal or financial conflicts.

  • Sale: The business may be sold, with proceeds divided equitably.

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In determining how to divide business interests in a divorce, courts consider factors like each spouse’s role in the business, contributions (financial or non-financial, such as administrative work or strategic planning), the length of the marriage, and the business’s financial health. If one spouse ran the business while the other supported the household, both contributions are weighed.

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​For more information, please see our blog post titled Business Interests in Divorce: How New York Courts Handle Ownership and Valuation

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• How are gifts and inheritances dealt with?

Under New York's Domestic Relations Law, inheritances and gifts received by one spouse are generally considered separate property, not marital property. This means they typically remain with the spouse who received them, even after divorce. This protection exists because inheritances and gifts are considered personal to the recipient. Whether you inherited your grandmother's estate or received a substantial gift from your parents, New York law recognizes that these assets were intended for you alone, not for the marital unit. However, the initial classification as separate property doesn't guarantee that your inheritance or gift will remain untouched during divorce. Several scenarios can transform separate property into marital property or create a claim for your spouse.

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​For more information, please see our blog post titled What Happens to Inheritances and Gifts During a New York Divorce?

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• How are cryptocurrency and digit assets dealt with?

The rise of cryptocurrency and digital assets has introduced new complexities to divorce proceedings in New York. As Bitcoin, Ethereum, NFTs, and other digital holdings become increasingly common, the issues involving their division in divorce proceedings have become more frequent. Digital assets encompass more than just cryptocurrency. They include NFTs (non-fungible tokens), digital wallets, cryptocurrency mining operations, blockchain-based investments, and even valuable online gaming assets or social media accounts with monetary value. Under New York's equitable distribution framework, these assets acquired during marriage are subject to division, regardless of which spouse holds the account.

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The decentralized and sometimes anonymous nature of cryptocurrency presents unique challenges that traditional bank accounts and investment portfolios do not. Unlike conventional financial assets with clear paper trails, crypto holdings can be transferred, hidden, or accessed through complex digital systems that require specialized knowledge to trace. New York law requires full financial disclosure from both parties during divorce proceedings. This obligation extends to all digital assets, including cryptocurrency holdings. Spouses must disclose the existence of digital wallets, exchange accounts, private keys, and any other means of accessing cryptocurrency or digital assets. Failure to disclose these assets can result in serious consequences.​

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For more information, please see our blog post titled Cryptocurrency and Digital Assets in New York Divorces​

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• What if my spouse is hiding assets?

Divorce proceedings require full financial disclosure from both parties. However, some spouses attempt to hide assets to avoid fair division of marital property. In New York, where equitable distribution governs property division, discovering hidden assets is crucial to protecting your financial interests.

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New York courts take asset concealment seriously. Spouses caught hiding assets may face severe consequences, including receiving a smaller share of marital property, being ordered to pay the other spouse's legal fees, and potentially facing contempt of court charges or perjury prosecution.

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For more information, please see our blog post titled Uncovering Hidden Assets During Divorce: Red Flags and Solutions

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• What is forensic accounting?

Forensic accounting is the detailed examination and analysis of financial records to uncover hidden assets, unreported income, or financial misconduct. In divorce cases, forensic accountants serve as financial detectives, tracing money trails and providing expert testimony about their findings. These professionals combine accounting expertise with investigative skills to present clear, court-admissible evidence.

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Forensic accountants employ various methods to reveal the complete financial situation: They analyze bank statements, tax returns, business records, and credit card statements to identify unusual transactions or patterns. They can trace asset transfers, locate hidden accounts, and discover unreported income. They may uncover attempts to devalue assets before divorce, excessive personal expenses charged to businesses, or money funneled to third parties for safekeeping.

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Forensic accounting services are an investment, typically involving hourly rates that can add up quickly. However, the cost must be weighed against potential benefits. If you suspect your spouse is hiding significant assets or income, the forensic accountant's findings could result in a substantially larger settlement that far exceeds their fees. Consider the scope of your concerns when deciding whether to hire a forensic accountant. For smaller estates with minimal complexity, the cost may outweigh the benefits. For high-asset divorces or cases with clear signs of financial deception, forensic accounting often proves essential.

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​For more information, please see our blog post titled Forensic Accounting in NY Divorces: When Do You Need It?

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• How is custody of a pet determined?​

Until recently, pets in New York divorce cases were divided like furniture or bank accounts, as part of equitable distribution. That changed in 2021 with the passage of an amendment to New York Domestic Relations Law § 236, which gave courts the authority to consider the best interest of the companion animal in awarding possession. This legal shift applies only to companion animals, including dogs, cats, and other pets kept for companionship (not for commercial use or farming). This means courts can now weigh more than just ownership records. Under the new law, New York courts can evaluate a range of factors to determine where the pet will live:

• Primary Caregiver: who feeds, walks, and takes the dog to the vet? who spends the most time with the pet?

• Stronger Bond: emotional attachment can matter, especially if one spouse can demonstrate a closer, more consistent relationship with the pet.

• Better Provider: stability, housing, financial resources, and daily availability to care for the dog can influence the decision.

• Safety and Well-Being: if one party has a history of neglect, abuse, or unsafe housing, that can weigh heavily against them.

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To learn more about pet custody please see our blog titled Who Gets the Dog in a New York Divorce? Understanding Pet Custody Laws

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• How is spousal support calculated in New York State?

In New York, spousal support, also known as maintenance or alimony, is determined by statutory formulas and the specific circumstances of the marriage, focusing on both parties' incomes and the length of the marriage.

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First, the following two calculations are preformed: ​​​​

1. 20% of the payor’s income minus 25% of the payee’s income if no child support is involved or 30% of the paying spouse’s income minus 20% of the recipient’s income if no child support is involved.

2. 40% of the combined income of both spouses, minus the payee’s income.

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The lower of the two results is the guideline amount, unless the court finds it unjust or inappropriate. If the resulting number is less than zero than no spousal support is payable.

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To learn more please see our blog post titled Understanding How Maintenance Is Calculated in New York State

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• How long does spousal support last in New York State

The duration of spousal support in New York depends on the length of the marriage:

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• Marriages up to 15 years: support lasts for 15–30% of the marriage length.

• Marriages 15–20 years: support lasts for 30-40% of the marriage length.

• Marriages over 20 years: support lasts for 35–50% of the marriage length.

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• Can courts deviate from the standard formula?

​Courts may consider a variety of factors in determining if their should be a deviation from the statutory amount of spousal support, including:​

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• Age and Health: Physical and mental health of both spouses.

• Earning Capacity: Present and future earning potential, including education and skills.

• Standard of Living: The lifestyle established during the marriage.

• Length of Marriage: Longer marriages may result in longer or higher maintenance awards.

• Contributions to the Marriage: Non-financial contributions, such as homemaking or supporting the other’s career.

• Assets and Liabilities: Property division and financial resources available post-divorce.

• Children: Custodial responsibilities or child support obligations.

• Other Factors: Any other relevant circumstances, such as domestic violence or wasteful dissipation of assets.​

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• Can spousal support be modified?

New York courts require proof of a substantial change in circumstances that has occurred since the original support order was entered. Common examples include:​

 

Income Changes: A significant increase or decrease in either party's income can justify modification. This might include job loss, a substantial promotion, retirement, or a new spouse's income affecting household finances. However, voluntary underemployment, such as intentionally taking a lower-paying job to reduce support obligations, won't be viewed favorably by the court.​

Health Issues: Serious illness or disability affecting either party's ability to work or creating substantial medical expenses can warrant a modification. The court will consider both physical and mental health conditions that materially impact financial circumstances.​

Retirement: Reaching retirement age and leaving the workforce can be grounds for modification, though courts will examine whether the retirement is reasonable and whether the payor has sufficient retirement income or assets.​

Remarriage or Cohabitation: Under New York law, spousal support automatically terminates if the recipient remarries. If the recipient is cohabiting with a romantic partner in a marriage-like relationship, this may also be grounds for modification or termination, though the burden of proof lies with the party seeking the change.

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For more information, please see our blog post titled When Can You Modify Spousal Support in New York?​

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• How are stock options, bonuses, and deferred compensation dealt with?

In many professional fields, from tech and finance to corporate management, stock options, bonuses, and deferred compensation packages can exceed base salary in value. For high-earning spouses, these benefits may represent the largest component of their total compensation. Failing to properly identify and value these assets during divorce can result in an inequitable settlement. New York is an equitable distribution state, meaning marital property is divided fairly, though not necessarily equally. The key question for any asset is whether it's marital property (subject to division) or separate property (belonging to one spouse alone).

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For stock options, bonuses, and deferred compensation, the analysis centers on when the compensation was earned. Generally, if these benefits were earned during the marriage and before the commencement of divorce proceedings, they're considered marital property, even if they won't be received until after the divorce is final.

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For more information, please see our blog post titled Stock Options, Bonuses, and Deferred Compensation in NY Divorces​

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• What is a high-net worth divorce?

When substantial wealth is at stake, divorce becomes significantly more complex. High-asset divorces in New York present unique legal, financial, and strategic challenges that require sophisticated planning and experienced legal counsel. These divorces often include multiple properties, business interests, investment portfolios, retirement accounts, stock options, and other complex financial instruments.

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One of the most significant challenges in high-asset divorces is accurately identifying and valuing all marital property. High-net-worth individuals often have diverse and complex asset portfolios that require expert valuation. Business interests may need forensic accountants to determine fair market value. Real estate holdings, particularly luxury properties or commercial real estate, require professional appraisals. Investment accounts, stock options, restricted stock units, and deferred compensation packages all present valuation challenges, especially when they're subject to vesting schedules or market fluctuations.

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Hidden assets are another serious concern. In some cases, one spouse may attempt to conceal assets through offshore accounts, shell companies, or undervalued business interests. Forensic accounting experts become essential in uncovering these attempts at asset concealment.

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For more information, please see our blog post titled Unique Challenges in High-Asset Divorces in New York

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• How are international assets handled?

New York follows the principle of equitable distribution, meaning marital property is divided fairly, though not necessarily equally, between spouses. This applies to all marital assets, regardless of where they're located. However, international assets present unique challenges that domestic property does not. Any property acquired during the marriage, with few exceptions, is considered marital property subject to division. This includes real estate in other countries, foreign bank accounts, international business interests, overseas retirement accounts, and foreign investment portfolios. The location of the asset doesn't change its classification under New York law.

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Obtaining a New York divorce judgment that addresses international assets is only half the battle. Enforcing that judgment abroad depends on the laws of the foreign country and whether treaties or reciprocal arrangements exist. Some countries may not recognize or enforce New York divorce orders, requiring separate legal proceedings in that jurisdiction. The Hague Convention and bilateral treaties between countries can facilitate enforcement, but each situation is unique.

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• Can I get my ex out of the house?

For married couples, the primary method of exclude an ex from the property is by obtaining an order for "exclusive use and occupancy." This is a court order that allows one spouse to remain in the marital home while requiring the other to vacate. It does not change ownership of the property but rather is a temporary arrangement during divorce or separation proceedings. The marital home is typically considered marital property if acquired during the marriage, regardless of whose name is on the title, and an order of exclusive use and occupancy does not change this.​ These orders are not permanent and are often issued "pendente lite" (while the case is pending) motions and can last until the divorce is finalized or a specific event, like a child turning 18. Ultimately, the home may be sold, bought out by one spouse, or divided as part of the final property settlement.

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Generally, the granting of such an order is appropriate only upon a showing that the relief is necessary to protect the safety of persons or property, or one spouse has voluntarily established an alternative residence, and a return would cause domestic strife. However, courts can be hesitant to remove a spouse from the home and won't grant it without a compelling reason.

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For more information please our blog post titled How to Get Your Ex Out of the House in New York State

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• What impact does infidelity having in a New York State divorce?

New York has been a no-fault divorce state since 2010, which fundamentally changed how courts handle divorce proceedings. Under no-fault divorce, couples can dissolve their marriage simply by stating that the relationship has been "irretrievably broken" for at least six months. This means you don't need to prove wrongdoing, including adultery, to obtain a divorce.

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While adultery remains a legally recognized ground for divorce in New York, most couples now proceed under the no-fault provision because it's simpler, faster, and less emotionally taxing than litigating fault-based claims.

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Martial Property: In most cases, an extramarital affair has minimal impact on how marital property is divided. New York follows the principle of equitable distribution, meaning assets are divided fairly (though not necessarily equally) based on various factors outlined in Domestic Relations Law § 236. These factors include the length of the marriage, each spouse's income and property, the age and health of both parties, and each spouse's contribution to marital assets. However, there are limited circumstances where adultery might indirectly affect property division. If a spouse spent significant marital funds on an affair, paying for gifts, trips, or maintaining a separate residence for a paramour, the court may consider this "dissipation of marital assets." In such cases, the innocent spouse might receive a larger share of the remaining marital property to compensate for these expenditures.

 

Spousal Maintenance: Adultery can potentially play a more significant role in spousal maintenance determinations, though its impact is still limited. When deciding whether to award maintenance and in what amount, New York courts consider numerous factors, including "any act by the party seeking maintenance that so shocks the conscience of the court as to compel its consideration." While adultery alone rarely rises to this level, courts have occasionally considered it alongside other egregious conduct. More commonly, if the affair involved substantial financial misconduct, such as transferring marital funds to a paramour, this could influence maintenance awards. That said, the primary factors in maintenance decisions remain economic: the income and property of each spouse, the length of the marriage, the age and health of both parties, and the standard of living established during the marriage.

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Child Custody: This is perhaps the most important area for parents to understand: in New York, extramarital affairs typically have little to no impact on child custody decisions. The court's sole focus in custody matters is the best interests of the child, not the moral conduct of the parents. The best interests standard considers factors such as each parent's ability to provide for the child's physical and emotional needs, the quality of the home environment, each parent's willingness to foster a relationship with the other parent, the child's relationship with each parent, and any history of domestic violence or substance abuse. An affair, by itself, doesn't demonstrate that a parent is unfit or unable to care for their children. Unless the extramarital relationship directly affects the children's wellbeing, for example, if a parent exposes children to inappropriate situations, neglects parental responsibilities due to the affair, or introduces numerous romantic partners into the children's lives in a destabilizing way, courts generally view it as irrelevant to custody determinations.

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For more information, please see our blog post titled How Extramarital Affairs Impact Divorce and Custody Proceedings in New York

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• Can I date while getting divorced?

New York is a “no-fault” divorce state, which means you don’t have to prove wrongdoing, such as adultery, to get divorced. Most divorces are filed on the grounds of an “irretrievable breakdown” of the marriage. So, simply beginning a new relationship while your divorce is pending will not stop your divorce from going forward.

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While dating itself won’t change how marital assets are divided, spending marital funds on a new partner could raise concerns. If you use joint money for gifts, trips, or living expenses with someone new, your spouse may claim “wasteful dissipation of assets.” A judge could require you to reimburse the marital estate, which may reduce your share of the property division.

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If children are involved, dating during divorce can raise sensitive issues:​​

• Children’s well-being: Introducing a new partner too soon may cause stress or confusion for children who are still adjusting to the separation.

• Court perception: Judges in New York are required to make custody decisions based on the “best interests of the child.” If dating creates instability, exposes children to conflict, or causes them distress, it could negatively influence custody and parenting time decisions.

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​For more insight into the potential implications of dating while your divorce is pending please see our blog post titled Can I Date While Getting Divorced in New York?

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• Can social media activity impact my divorce?​

In today's digital age, social media has become an integral part of our daily lives. We share updates, photos, and thoughts with friends and family at the click of a button. However, when going through a divorce in New York, those seemingly innocent posts can have serious legal consequences. Many people don't realize that anything posted on social media platforms like Facebook, Instagram, Twitter, or TikTok can potentially be used as evidence in divorce proceedings. ​

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For more information please see our blog post titled Social Media and Divorce: What NY Residents Need to Know

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• What is a Legal Separation?

A legal separation is an arrangement that allows married couples to live apart while remaining legally married. This formal agreement addresses many of the same issues that arise in divorce proceedings, including division of property, child custody and visitation, child support, spousal maintenance, and responsibility for debts. The key distinction is that at the end of the process, you are still married in the eyes of the law. You cannot remarry, and certain legal and financial ties remain intact.

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For more information, please see our blog post titled What Is the Difference Between a Legal Separation and a Divorce in New York State?

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• What is a Separation Agreement?​​

A separation agreement is a legally binding contract between spouses who have decided to live apart but are not yet divorced. In New York, this agreement outlines each spouse’s rights and responsibilities, including matters such as division of property and debts, child custody and parenting time, child support, and spousal support.​ When properly drafted and executed, a separation agreement can serve as the foundation for a later divorce settlement. It allows spouses to resolve important issues privately and avoid extended court battles.

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For more on separation agreements please see our blog post titled Understanding Separation Agreements in New York: What You Need to Know 

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• What impact does a divorce have on your will and other estate planning documents?

In New York, a divorce can have a major impact on your will and other estate planning documents. Under New York law (EPTL § 5-1.4), a divorce automatically revokes any provisions in a will or estate plan that designate your former spouse as a beneficiary, executor, or trustee, unless the will explicitly states otherwise. This means, for inheritance purposes, your ex-spouse will generally be treated as if they had predeceased you.

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​Divorce also impacts advance directives. Under EPTL § 5-1.4, any nomination of your spouse in a durable power of attorney (for financial decisions) or health care proxy (for medical decisions) is revoked upon divorce. Without an update, you might be left without a designated agent, leading to court intervention if you're incapacitated.

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To learn more please see our page on Wills, Trusts, and Estates Planning in New York and our blog post titled The Impact of Divorce on Wills and Estate Planning in New York

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• What is divorce mediation?

Divorce mediation is a voluntary process in which both spouses work with a neutral third-party mediator to resolve the key issues of their divorce. The mediator does not represent either spouse or provide legal advice but instead facilitates productive discussions and helps the parties find common ground. While mediation can be highly effective, it may not be suitable for every situation. For example, cases involving domestic violence, severe power imbalances, or one party’s unwillingness to participate in good faith may be better resolved through litigation.

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For more information, please see our blog post titled An Overview of Divorce Mediation in New York State

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• How does military service impact divorce?

For active-duty service members and military retirees in New York State, family law presents distinct legal considerations that require specialized knowledge and sensitivity. Understanding how military service impacts divorce proceedings is essential to protecting one’s rights and stability.

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For an extensive discussion of military divorces, please see our blog post titled Special Considerations in Divorces Involving Retired or Active-Duty Military

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• Does New York State recognize same sex divorces?

New York State does not distinguish between same-sex and opposite-sex marriages when it comes to divorce proceedings. The same laws, procedures, and requirements apply to all married couples, regardless of gender. This means that same-sex couples have access to the full range of divorce options available in New York, including contested and uncontested divorces, mediation, and collaborative divorce. The grounds for divorce are identical for all couples. New York is a no-fault divorce state, which means you can obtain a divorce by asserting that the marriage has been irretrievably broken for at least six months.

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• Will getting divorced impact my immigration status?

Many immigrants in the U.S. obtain legal status through marriage to a U.S. citizen or lawful permanent resident (LPR). A divorce can jeopardize these statuses, depending on the timing, the type of immigration benefit, and the circumstances of the marriage.

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For an extensive discussion of how divorce may impact your immigration status, please see our blog post titled How Divorce Can Impact Immigration Status​​​

For more details the divorce process please visit our Divorce page or contact us today for free confidential consultation to discuss your case.​

For tips on how to navigate discussing divorce with children please see our blog post titled How to Talk to Your Children About Divorce

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Child Custody

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•   What is the difference between physical and legal custody?

   In New York State, custody is divided into two types: legal custody and physical (or residential) custody, which cover different aspects

   of parenting rights and responsibilities.​

   

   Legal Custody refers to the right to make major decisions about the child's life in areas such as education, health care, and religion. Legal custody can be ​

   sole, meaning that one parent has the exclusive right to make these decisions, or joint, meaning both parents share decision-making authority.​

   Physical custody, sometimes referred to as "residential custody", is where the child lives on a day-to-day basis and which parent

   provides the child’s primary home, and is responsible for their daily care, and supervision. Like legal custody, physical custody can be

   either sole or joint.​​

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For more information, please see our blog post titled Legal Custody vs. Physical Custody: What’s the Difference?

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• What factors are considered in custody determination in New York State?​​​

In New York State, custody decisions determined by application the “best interests of the child” standard. To determine what is in the best interests of the child, courts look at a range of factors to decide which arrangement will best support the child’s welfare, stability, and development. Courts are to consider the totality of the circumstances, with no one factor being automatically determinative. Some of the primary factors considered include: 

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• Parental Fitness and Ability, which includes each parent’s physical and mental health, ability to provide for the child’s emotional and intellectual development, and any substance abuse, domestic violence, or neglect issues that may be present

• Stability of the Home Environment, which includes who has been the child’s primary caregiver, the quality of each parent’s home environment, and the need for stability and continuity in the child’s life.

• Parent-Child Relationship, which includes the emotional bond between the child and each parent, the willingness of each parent to foster a positive relationship with the other parent, and evidence of alienation or attempts to undermine the other parent.

• Parental Cooperation, which considers each parent’s ability to communicate and co-parent effectively and whether joint legal custody is realistic under the circumstances.

• Child’s Wishes, which takes on increased weight as the child ages.

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Additionally, courts will consider other practical considerations such as each parent’s work schedule and availability to care for the child, the geographic proximity of the parents’ homes, and the presence of siblings in either home.

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For more on what courts consider in a "best interests" analysis please see our blog post titled What New York Courts Consider When Determining "Best Interests of the Child"

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• What role does mental health play in custody determinations?

New York courts prioritize the child's well-being above all else in custody disputes. The "best interests" standard requires judges to weigh a variety of factors to determine what arrangement will best support the child's emotional, physical, and psychological development. While mental health can be one key element, it is not viewed in isolation. Instead, courts assess how a parent's mental condition affects their ability to provide a stable, nurturing environment.

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For instance, emotional instability, mood disorders, or untreated mental illnesses can weigh against a parent if they impair caregiving. However, a diagnosis alone isn't grounds for denying custody. New York law emphasizes that a mental health issue must have a direct "nexus" to the child's best interests, meaning it has to have a demonstratable adverse impact on the child's well-being. This approach reflects a growing recognition of mental health as a manageable aspect of life, rather than an automatic disqualification.

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​To learn more please see our blog post titled The Impact of Mental Health on Custody Determinations in New York State

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• What are psychiatric evaluations in custody matters?

A psychiatric evaluation is a professional assessment performed by a licensed mental health professional. The evaluator’s job is to assess the mental and emotional condition of one or both parents, and, in some cases, the child, to help the court understand how those factors may impact parenting ability, decision-making, and the child’s well-being. These evaluations differ from standard therapy or counseling. The evaluator does not provide treatment but instead prepares a written report for the court or attorneys involved in the case. The report may include:​

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• A summary of interviews with the parents and child

• Psychological testing results

• Observations of parent-child interactions

• Professional opinions about each parent’s ability to meet the child’s needs

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Courts don't order these evaluations in every custody case; they're reserved for situations where there's significant conflict or concern. Common triggers include:

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• Allegations of mental illness, substance abuse, domestic violence, or instability;

• A parent exhibits erratic, aggressive, or concerning behavior;

• The child shows signs of emotional distress linked to a parent’s conduct;

• The court needs expert insight to evaluate the child’s safety or developmental needs;

• High levels of parental conflict;

• Suspected parental alienation, where one parent may be influencing the child against the other.​​

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A judge may order an evaluation on their own initiative (sua sponte), at the request of a parent, or based on a recommendation from the attorney for the child. The evaluator’s findings are not binding, but they often carry significant weight. Judges in New York may consider the evaluator’s recommendations alongside testimony, documents, and other evidence presented at trial.

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For more information, please see our blog post titled The Use of Psychiatric Evaluations in Child Custody Matters

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• What is the impact of domestic violence allegations on custody determinations?

New York law explicitly requires judges to factor in domestic violence when deciding custody and visitation. The key statute is New York Domestic Relations Law (DRL) § 240(1)(a), which mandates that courts consider the "effect of such domestic violence upon the best interests of the child" if allegations are proven by a preponderance of the evidence (meaning it's more likely than not that the abuse occurred). This applies to both initial custody determinations and modifications, ensuring ongoing protection for children.

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For more information on the impact of domestic violence on custody determinations please see our blog post titled The Impact of Domestic Violence Allegations on Custody Determinations in New York State

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• What is parental alienation?

Parental alienation is a serious form of emotional manipulation where one parent systematically damages the bond between the child and the other parent. Parental alienation occurs when one parent manipulates or pressures a child to reject, fear, or show hostility toward the other parent, often without legitimate justification. This can take many forms, such as:​

 

• Making negative comments about the other parent in front of the child

• Limiting or interfering with visitation or communication

• Creating false narratives about neglect or abuse

• Forcing the child to side with one parent over the other and/or rewarding them for doing so

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In New York, custody determinations are based on the best interests of the child. When a court finds evidence that one parent has intentionally tried to alienate the child from the other, it can weigh heavily against that parent. The courts have consistently held that a parent’s willingness to foster a positive relationship between the child and the other parent is a key factor in determining custody. Alienating behavior can lead to a loss or reduction of custody for the offending parent.

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For more please see our blog post titled Parental Alienation in Custody Determinations

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• Can I change an existing custody order?​​​

An existing custody order may be modified upon mutual agreement of the parties or a court determining that a substantial change in circumstances has occurred since the last order and that a modification of the order would be in the child’s best interests. Examples of what courts may consider to be substantial change in circumstances include:

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• The relocation of a parent (especially if it impacts school, visitation, or relationships).

• The custodial parent interfering with visitation or not following the existing order.

• Evidence of domestic violence, substance abuse, or neglect.

• A significant change to a parent’s work schedule or living situation.

• The child has expressed a strong preference for a different arrangement.

 

For more information, please see our blog post titled Modifying Child Custody Orders in New York: What You Need to Know

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• How is the holiday schedule determined?

Like other aspects of custody, holiday schedules can be agreed upon by the parties themselves or determined by the court. There are typically three types of arrangements for holidays:

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1. Rotating Schedule: Parents alternate holidays each year, such as one parent getting the child on Christmas Day in even years while the other parent has them in odd years.

2. Fixed Schedule: Certain holidays are consistently assigned to one parent (for example, one parent always has Christmas while the other always has Thanksgiving)

3. Split Schedule: The child spends time with both parents on a given holiday, such as one parent getting Christmas morning while the other has Christmas evening.

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In New York, holiday schedules generally override the normal weekly custody arrangement. This ensures that each parent has an opportunity to share meaningful time with the child on major holidays, even if the regular schedule would place the child with the other parent.

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​For more on holiday custody schedules please see our blog post titled How Are Holiday Custody Schedules Determined in New York State?​

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For tips on how to navigate specific holiday custody schedules please see our blog posts titled Co-Parenting Tips for a Smooth Thanksgiving​ and Co-Parenting Tips for the Christmas Holiday​

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• Can I move if I have a custody order?

In New York, if you have a custody order and wish to relocate with your child in a way that would significantly impact the other parent’s access to the child you must typically seek court approval or the other parent’s consent. If the other parent agrees to the relocation, you can formalize the agreement through a written stipulation or modified custody order. If the other parent objects, you must file a petition with the court to modify the custody order and permit the relocation.

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Relocation cases in New York, like all custody matters, are evaluate based on what is in the child’s best interests. However, there is an added layer of analysis in relocation cases guided by the landmark case Tropea v. Tropea (1996), and according known as Tropea Factors, which include:​​

• Reason for the Move: Courts assess whether the relocation is for a legitimate purpose, such as a job opportunity, better living conditions, or family support, versus an intent to interfere with the other parent’s relationship with the child.

• Impact on the Child: The court considers how the move affects the child’s emotional, educational, and social well-being, including access to quality schools, healthcare, and community ties.

• Impact on the Non-Custodial Parent: Courts evaluate whether the move significantly disrupts the non-custodial parent’s visitation or relationship with the child. A proposed parenting plan that maintains meaningful contact (e.g., extended visits, virtual communication) can help.

• Quality of Life Improvements: The court may consider whether the relocation offers financial, educational, or emotional benefits for the child and custodial parent.

• Child’s Wishes: Depending on the child’s age and maturity, their preference may be considered.

• History of Parental Involvement: The court examines each parent’s role in the child’s life and whether the move supports or undermines those relationships.

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You must demonstrate that the relocation serves the child’s best interests. The court may hold a hearing to review evidence, such as financial records, school information, or testimony about the proposed move’s benefits and drawbacks. Relocation cases are fact-specific. For example, moving within New York may face less scrutiny than moving out of state or internationally. Long-distance moves may require adjustments to visitation schedules or transportation cost arrangements.

 

For more information, please see our blog post titled Understanding Child Custody Relocation Petitions in New York​​

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• What impact do extramarital affairs have on custody determinations?​

In New York, extramarital affairs typically have little to no impact on child custody decisions. The court's sole focus in custody matters is the best interests of the child, not the moral conduct of the parents. The best interests standard considers factors such as each parent's ability to provide for the child's physical and emotional needs, the quality of the home environment, each parent's willingness to foster a relationship with the other parent, the child's relationship with each parent, and any history of domestic violence or substance abuse.

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An affair, by itself, doesn't demonstrate that a parent is unfit or unable to care for their children. Unless the extramarital relationship directly affects the children's wellbeing, for example, if a parent exposes children to inappropriate situations, neglects parental responsibilities due to the affair, or introduces numerous romantic partners into the children's lives in a destabilizing way, courts generally view it as irrelevant to custody determinations.

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While rare, there are scenarios where an affair could indirectly influence custody. If a parent's relationship causes them to neglect their children or compromise their safety, this could affect custody. For instance, if a parent frequently leaves young children unsupervised to spend time with a romantic partner, or exposes children to dangerous situations or inappropriate conduct, the court will consider this evidence of poor judgment. Similarly, if a parent introduces a string of romantic partners to the children or moves quickly to cohabitate with someone new, demonstrating instability, a judge might weigh this when determining what arrangement serves the children's best interests.

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For more information, please our blog post titled How Extramarital Affairs Impact Divorce and Custody Proceedings in New York

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• Can I keep my ex's new partner away from our child?

In any custody or visitation dispute, New York courts base their decisions on what serves the best interests of the child. This broad standard includes many factors, such as the child’s physical and emotional well-being, stability, safety, and the ability of each parent to provide a nurturing environment.

 

Unless a new partner negatively impacts the child’s welfare, courts are generally reluctant to interfere with a parent’s judgment about who they choose to date or live with. To prevent your ex’s new partner from being around your children, you will need to show that their presence:​​

• Endangers the child’s physical or emotional safety (e.g., substance abuse, domestic violence history, child abuse or neglect)

• Interferes with the child’s stability or routine

• Creates a toxic or inappropriate environment (e.g., ongoing conflict, foul language, overt sexual behavior)

• Violates existing court orders or parenting agreements

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If you raise general objections or emotional discomfort, but lack clear evidence of harm, the court is unlikely to issue restrictions.

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For more information, please see our blog post titled Can I Keep My Ex’s New Partner Away From Our Children? Understanding the Legal Factors That Matter in New York State​​​

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• What is the role of an Attorney for the Child in New York State custody matters?​​​​

In New York State custody cases, an Attorney for the Child (AFC), is a court-appointed lawyer tasked with representing the child’s best interests and preferences. The AFC ensures the child’s voice is heard in custody and visitation disputes, particularly when parents disagree. The AFC’s primary role is to advocate for the child’s best interests, which may not always align with the parents’ positions. They investigate the child’s circumstances, including their living situation, relationships with parents, and emotional well-being.

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For more information, please see our blog post titled Understanding the Role of the Attorney for the Child in New York State Custody Matters​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​