Divorce New York Style

Until recently, New York had the dubious distinction of being the only state in the country that didn’t allow for “no-fault” divorces. One spouse had to accuse the other of adultery, abandonment or some other wrongdoing to end the marriage. 

That changed in 2010, but there are still ways New York differs from other states when it comes to family law. 

New York is virtually the only jurisdiction in the country that considers “enhanced earning capacity” as part of the divorce—basically putting value on degrees, licenses and awards earned during the marriage. The law is based on the 1985 case O’Brien v. O’Brien, in which Loretta O’Brien’s attorney argued that because she had put her career on hold to support her husband as he attained his medical degree, she should be entitled to a portion of the value of his medical license and degree.

Eleanor B. Alter, an attorney with Kasowitz, Benson, Torres & Friedman, who used the “enhanced earning capacity” argument for a client whose husband won a Nobel Prize, doesn’t necessarily think the concept is a good one. “You’re trying to predict the future,” says Alter. “Mr. O’Brien should have settled, if possible. He never earned the money that was contemplated, because he became an emergency room physician.”

Couples getting divorced in New York have greater privacy than those in other states. Only they and their attorneys can access their files, says Marcy Wachtel of Katsky Korins. “There’s also the ability to commence matrimonial actions on an anonymous basis, if the court feels publishing the name of a famous person violates their privacy,” says Wachtel. “Many times they’ll publish cases with just initials. We’ve had cases where we’ve been able to make them anonymous.”

New York also has the concept of separate property—property not subject to division upon a divorce—which not all states do. And even among those states that do recognize the concept, there are differences. “In the broadest of and very general terms, if a client comes into the marriage with assets, that is considered separate from property acquired during the marriage,” says Sylvia Goldschmidt of Goldschmidt & Genovese in White Plains. “Even if during the marriage one party gets an inheritance, that is separate property in New York. … Generally speaking, it is not subject to equitable distribution.” 

Kids? “In California there is a presumption that the mother and father should share custody of the child equally,” says Susan Moss, a founding partner at Chemtob Moss and Forman. “In New York we do not have the same presumption and often the mother gets the kids. … But we are moving closer to giving people more time than the traditional ‘every other weekend’ and ‘one night a week.’”

Like most states, New York has a statistical formula for determining child support (ex: 17 percent of the parent’s income for one child, 25 percent for two, 29 percent for three, etc.), but the state also has income caps, which is unusual. “In many other states, it’s presumed that if someone is exceedingly rich, the child support amounts would blow your socks off,” says Moss. “In New York, we tend to cap the amount of income that we look at—usually the first $350,000. Though recently there was a case that went to $600,000.” On the other hand, New Yorkers are obligated to pay until the child is 21; most other states stop at 18.

Though there is a similar formula for determining temporary spousal support, there is no formula—yet—for permanent spousal support. So while New York laws might lead some people to forum shop—to find a state more likely to provide a favorable judgment—when it comes to spousal support, New York is the place to be. 

“The standard of living is higher there, the cost of living is higher, and judges are more regularly inclined to award more money,” says RoseAnn Branda, a partner at Caruso, Caruso & Branda.