There are a lot of misconceptions about Divorce in New York State. People hear things from their brother in Pennsylvania, and their old friend from high school who got divorced 10 years ago, and are willing to take their word for it on how things will work out. Here are a few common myths and the lowdown on how things really work:
- The Mother always gets the kids: Not quite. In New York, there is no preference for the Mother to have custody of the children over the Father.
- The Father has to pay child support no matter what: Actually, the non-custodial parent generally pays child support to the custodial parent. If the Father is the custodial parent, barring certain additional considerations, the Mother will often be required to pay child support to the Father.
- If we get divorced, my spouse gets half of everything: Actually, New York is an “Equitable Distribution” state, not a “Community Property” state. This means that assets and debts are distributed according to what is “equitable” not just a quick division of half.
- I can get a divorce for irreconcilable differences: No you can’t. There are only certain grounds for divorce in New York and irreconcilable differences is not one of them.
- At least my pension is safe, my spouse can’t get to that: Wrong. A pension accrued during the course of a marriage is considered marital property to the extent it was accrued during the marriage. Pensions are often distributed in a divorce by way of a QDRO (Qualified Domestic Relations Order).
In New York, the courts generally want to do what is fair, or equitable between the parties in a divorce. Sometimes old myths prove true, though usually not for the reasons that one might think. New York is still stuck in the age of the dinosaurs in some respects (like no “no-fault” divorce statute) but is rather progressive in others. I personally think that equitable distribution is a more equitable way (pun intended) to distribute property and debt than everyone taking half, regardless of whether they ran up a $50,000 credit card bill 2 months prior to filing for divorce.