On its face, Domestic Relations Law § 170(7) appears to allow the court to grant a judgment of divorce where one spouse states under oath that the relationship is irretrievably broken. This construction would eliminate any defenses to this ground. However, other jurisdictions which have adopted this ground for a divorce have held that the defendant can raise the defense that the marriage is not irretrievably broken. In other states where an irretrievable breakdown is a ground for divorce, it has been held that the court presiding over an action for divorce on the ground of irretrievable breakdown has a duty to determine whether the marriage is, in fact, "irretrievably broken". The recent ruling of an upstate New York Supreme Court judge, in Strack v. Strack, has held that a trial can be required to prove an "irretrievable breakdown". In addition, the new ground does not eliminate the five-year statute of limitations applicable to divorce actions. The Domestic Relations Law provides that no action for divorce may be maintained on a ground which arose more than five years before the date of the commencement of the action except where abandonment or separation pursuant to agreement or decree is the ground.
How Long Does it Take to Obtain a Divorce in New York? This depends on the complexity of your particular case. A simple and uncomplicated uncontested divorce can be processed by the Supreme Court within approximately 60 days. This will vary depending on the particular venue and the court or judge's backlog. A complex contested divorce action, which may involve property, custody and support issues, can take years. Often times, contested matters may be resolved during the course of litigation with the assistance of mediators, arbitration, judges or an agreement between the parties. Several factors play a role in the speedy resolution of a divorce action that was initiated as a "contested matter", including the reasonableness of the parties involved, the ability and competence of the attorneys on both sides of an action to determine the merit of their clients positions, the stakes or amount of money involved, the seriousness of the custody issues involved and the financial resources of the parties and ability to proceed with trial.
As contested divorce matters are expensive to pursue, you should make sure to retain an attorney that is not overly-zealous and looking to take your case to trial without considering the possibility of a settlement. This only benefits the attorney's bank account and is not always in the best interests of a matrimonial client. Most cases should not proceed to trial because they may involve simple issues that have initially become complicated by the emotions of the parties involved in the divorce.
Many areas of matrimonial law are "black and white" and the merit of your position can be determined in advance and the result of your contentions predicted prior to spending thousands in litigation costs. Even if an attorney on a particular side of an action does not undertake the responsibility to their client of being financially efficient, parties will often eventually realize the substantial cost of litigation and be willing to come to the negotiating table. Thus, in a contested divorce action, the time frame will depend on you and your spouse. However, at times, a divorce action, requiring a trial, and thus years of litigation may be unavoidable.
How Much Will I Have to Pay in Child Support in New York? Child support in New York is calculated pursuant to the Child Support Standards Act ("CSSA") (Domestic Relations Law §240(1-b) and Family Court Act § 413(1)(b)). Generally, the Court must order the non-custodial parent to pay his or her pro-rata share of the "basic child support obligation". The "basic child support obligation" is calculated by multiplying the "combined parental income" by the applicable "child support percentage." Income" is defined as "gross income as was or should have been reported on the most recent federal income tax return" fewer deductions for, inter alia, social security, and New York City and Yonkers income taxes. The "child support percentage" will be one of the following:
- 17% of the combined parental income for one child
- 25% of the combined parental income for two children
- 29% of the combined parental income for three children
- 31% of the combined parental income for four children
- No less than 35% of the combined parental income for five or more children.
The court has the discretion to depart from the child support percentages as to those portions of combined parental income in excess of $130,000.00. In addition to child support, the Court can order each parent to pay his or her pro rata share of support for the children's medical insurance, out of pocket medical & dental related expenses, for educational expenses, childcare and the cost of extra-curricular activities. This is known as "Ad-On Support."