Family Law Comparative Guide

1 Legislative framework

1.1 Which main sources of laws and regulations govern matrimonial and family law matters – including, but not limited to, divorce, judicial separation, children's matters and financial matters arising from the breakdown of marriage – in your jurisdiction?

The primary statutory provisions regulating the practice of matrimonial and family law are found in the New York Domestic Relations Law and the Family Court Act.

1.2 Which bilateral or multinational instruments have application in this regard in your jurisdiction?

There are several instruments and treaties in force; however, the most notable as they relate to family law are:

• the Hague Convention on the Civil Aspects of International Child Abduction; and
• the Hague Convention on International Recovery of Child Support and other Forms of Family Maintenance.

1.3 Which bodies are responsible for enforcing the applicable laws and regulations in your jurisdiction? What powers do they have? What is the general approach of these bodies in enforcing the applicable laws and regulations?

The bodies responsible for enforcing the laws are mainly the courts, including the New York Supreme Court and the family courts (supreme and family courts are situated in each county). The foregoing are trial courts whose decisions are subject to review by the Appellate Division (First to Fourth Departments, depending on location), and further to potential review by New York's highest court, the New York Court of Appeals.

While both the Supreme Court and the Family Court are empowered to hear a broad range of family matters (eg, child custody, child support, order of protection, child neglect/abuse), only the Supreme Court maintains jurisdiction to hear divorce proceedings and to address the division of marital property.

In some instances, discrete family law issues may be administered by state or city-wide agencies (eg, child support enforcement units, child welfare agencies).

1.4 Can foreign judgments and orders be enforced in your jurisdiction and if so how?

Largely, yes.

New York's Civil Procedure Law and Rules provide for the enforcement of foreign money judgments in New York, pursuant to the Uniform Foreign Country Money Judgments Act (2021) at CPLR Article 53, provided that certain due process standards were met in obtaining the foreign judgment.

Other provisions of the New York Domestic Relations Law (Sections 75 and 236) and the Family Court Act (Section 115 and Article 5-B) provide for the recognition and enforcement/modification of foreign divorce judgments, child custody orders and child support orders.

2 Jurisdiction

2.1 What are the jurisdictional requirements for the domestic courts to handle matrimonial and family law matters? How do the parties satisfy the courts of such requirements?

See questions 5.6 and 7. The jurisdictional requirements differ with respect to various family law-related matters.

2.2 What are the legal principles governing disputes on competing jurisdictions and what are the determining factors for the court when considering such disputes?

The court looks at several factors, including:

• the timing of the filings;
• the validity of the filings;
• whether the court has subject-matter jurisdiction over the case and personal jurisdiction over the parties; and
• whether New York is a convenient forum.

In child custody and child support cases involving multiple jurisdictions, there is a process prescribed by statute (in the case of custody, the Uniform Child Custody Jurisdiction and Enforcement Act; and in the case of child support, the Uniform Interstate Family Support Act) to determine the jurisdiction in which the matter should proceed. This process may involve communication between the respective courts.

3 Relationships and co-habitation,

3.1 Are there any laws and regulations protecting same-sex and/or co-habiting couples in your jurisdiction? If so, what are they?

See question 3.4.

3.2 Do co-habiting couples have any rights in the event of the breakdown of the relationship? On what grounds can they exercise those rights?

There are no financial rights that arise solely from cohabitation. Certain civil claims may be possible if a couple jointly own titled property or have entered into a cohabitation agreement.

3.3 Can co-habiting couples formalise their relationship in your jurisdiction (eg, through a civil partnership or similar)?

Domestic partnerships are possible; however, the rights associated with a domestic partnership are limited.

3.4 Are foreign civil partnerships, same-sex marriages or similar recognised in your jurisdiction? What requirements and restrictions apply in this regard?

Yes. The couple will be entitled to the rights afforded by their legal relationship.

4 Marriage

4.1 What is considered a legal and valid marriage in your jurisdiction?

A marriage in New York is reflected by a marriage certificate issued in the county in which the marriage takes place, regardless of whether the marriage is civil or religious in nature.

New York will recognise a foreign marriage that is valid in the jurisdiction in which it was entered into, regardless of the existence of a certificate.

New York courts may also determine that a marriage is valid even without a certificate/licence if the parties solemnly declare in the presence of a member of the clergy to take each other as spouses. No particular form of ceremony is required; however, the court will conduct a fact-specific inquiry in which both the parties' intent and the solemnisation are considered.

4.2 Does your jurisdiction recognise common law/de facto marriages as valid marriages?

No, unless the marriage was valid in the jurisdiction in which it was entered into.

4.3 Are religious marriages, foreign marriages or customary marriages recognised in your jurisdiction? What requirements and restrictions apply in this regard?

Typically, yes. If the marriage is a foreign marriage, it must:

• have been legally entered into in the foreign nation; and
• not violate the public policy of New York.

If the marriage is a religious marriage, the court will determine whether the marriage was solemnised in accordance with Sections 11 and 12 of the New York Domestic Relations Law.

4.4 Does a specific marital property regime apply in your jurisdiction?

New York has adopted the principles of equitable distribution; but unlike in other jurisdictions, the parties do not select a property regime at the time of the marriage, absent entering into a separate pre-marital agreement which governs their rights and obligations during their marriage, or in the event of dissolution or death.

5 Pre- and postnuptial agreements

5.1 Are pre- and postnuptial agreements recognised in your jurisdiction? Does this depend on whether the agreement was entered into in the jurisdiction?

Yes, pre- and postnuptial agreements are generally recognised in New York, whether domestic or foreign.

5.2 What are the formal and procedural requirements to enter into a valid pre- or postnuptial agreement and what requirements and restrictions apply to the content of pre- and postnuptial agreements?

A New York marital agreement must be signed by the parties and acknowledged or proved in the form required for a deed to be recorded. These formalities are found in New York's Real Property Law.

Child-related issues are typically not addressed in pre- or postnuptial agreements; if they are addressed, the scope is limited.

The agreement must also be made in conformity with the standards for contracts, meaning that the agreement cannot:

• be the product of fraud, duress or coercion; or
• be unconscionable or violate public policy.

5.3 What specific considerations and concerns should be borne in mind in relation to pre- and postnuptial agreements where the parties have international connections (eg, in terms of the location of assets, domicile/habitual residence or future plans)?

The parties should consider several aspects, such as:

• choice of law and forum; and
• which jurisdictions' formalities should be followed.

They may also benefit from the advice and drafting input of foreign counsel.

5.4 Do the regimes discussed in this question have equal application to same-sex couples? If not, please highlight the differences in treatment.

In New York, yes, to the extent that the couple are married.

5.5 Is the legal status of a separation agreement different from a pre- or postnuptial agreement? If so what are the differences?

Both forms of agreements (pre/post-marital and separation) are enforceable contracts; but separation agreements aim to resolve all marital financial and child-related matters in a highly specific and final manner, with mutual releases for the parties and with the terms of the separation agreement often becoming the terms of a later judgment of divorce.

While some pre- and postnuptial agreements are specific and comprehensive, many pre- and postnuptial agreements address limited issues that could arise during the marriage and cannot fully address child-related issues. In some respects, pre- or postnuptial agreements may be more of a ‘roadmap' in terms of:

• characterising the ownership of assets yet to be acquired;
• facilitating the processes for the distribution of property;
• calculating spousal support in the event of dissolution; or
• determining a spouse's rights upon the other spouse's death.

6 Divorce

6.1 Under what circumstances do the domestic courts have jurisdiction to deal with a divorce initiated by the parties?

The parties must meet jurisdictional requirements found in Section 230 of the New York Domestic Relations Law, which are largely residential in nature:

• The marriage occurred in New York, one party has resided in New York continuously for at least one year immediately prior to the commencement of the action (‘commencement') and that party remains a resident as of commencement;
• The parties have resided in New York as husband and wife and one party has resided in New York continuously for at least one year immediately prior to commencement;
• The cause of action has arisen in New York and:
• • both parties are residents at commencement; or
  • one party has resided in New York continuously for at least one year immediately prior to commencement; or
• Either party has resided in New York for a continuous period of two years prior to commencement.

6.2 What are the grounds for divorce in your jurisdiction? How do the parties prove these grounds?

The grounds and no-fault grounds for divorce are set forth in Sections 170(1) to (7) of the New York Domestic Relations Law, as follows:

• cruel and inhuman treatment (ie, the conduct of the defendant has endangered the physical or mental wellbeing of the plaintiff so as to render it unsafe or improper for the plaintiff to cohabit with the defendant);
• abandonment (actual or constructive, for a period of one or more years);
• imprisonment (incarceration of the defendant for three or more consecutive years after the marriage);
• adultery;
• living separate and apart for one or more years pursuant to a decree or judgment of separation and the plaintiff must have substantially performed all of the terms and conditions of such decree or judgment;
• living separately and apart for one or more years pursuant to a written separation agreement that was subscribed by the parties and acknowledged or proved in the form required for a deed to be recorded or pursuant to a decree/judgment of separation; the plaintiff must have substantially performed all terms and conditions of the agreement or decree/judgment; or
• the irretrievable breakdown of the marriage for at least six months, provided that one party states so under oath. (The court will not issue a judgment of divorce until the ancillary custodial and economic issues have been resolved.)

6.3 How does the divorce process typically unfold and what is the general timeline?

There is no uniform timeline for divorce proceedings and it is common for a contested matter to remain active for a few years from the initial appearance to completion of trial. If the matter is appealed, this may increase the time to final resolution.

Uncontested matters may proceed more quickly; however, the processing times to obtain a judgment of divorce can take many months at present.

6.4 Can divorce proceedings be finalised while other related proceedings (eg, involving children or finances) are still ongoing?

Divorce actions based on fault grounds may be bifurcated from the financial and custodial proceedings, with the dissolution being granted first. However, for no-fault divorce actions – which constitute the overwhelming majority of divorce actions in New York – all ancillary issues must be resolved prior to the entry of a judgment of divorce.

6.5 Is non-judicial divorce available in your jurisdiction? What requirements and restrictions apply in this regard and how does the process typically unfold?

This is not available in New York.

6.6 Are foreign divorces and religious divorces recognised in your jurisdiction? What requirements and restrictions apply in this regard?

Foreign divorces are recognised under Section 236, Part B of the New York Domestic Relations Law.

Religious divorces are not recognised, except where a foreign religious divorce decree:

• is civilly enforceable in the jurisdiction in which it was issued; and
• does not violate public policy in New York.

For example, in Tsirlin v Tsirlin, 19 Misc.3d 1132(A) (Kings County Supreme Court 2008), the court held that "the divorce obtained by the parties in an Israeli court which was predicated on a religious divorce (‘Get') is void under the laws of New York and will not be recognized in New York" The Get was obtained in New York and the rabbinical court in Israel had granted a divorce.

6.7 Are separation and/or nullity proceedings available in your jurisdiction? What requirements and restrictions apply in this regard?

Section 140 of the New York Domestic Relations Law allows for a marriage to be declared null if:

• a former spouse is living and the former marriage is still in force;
• a party is under the age of consent;
• a party had a developmental or other mental illness at the time of marriage;
• a party was physically incapable of entering into the marriage;
• consent was obtained by force, duress or fraud; or
• one party has been incurably mentally ill for five or more years.

Section 200 of the New York Domestic Relations Law provides for an action for separation; however, a party alleging a cause of action for separation must plead grounds.

6.8 What are the requirements for effective service of the divorce papers on the other party in your jurisdiction and how can the papers be served on the opposing party if he or she lives overseas?

Either a summons with notice or a verified complaint accompanied by a summons must be personally served on the opposing party. The summons must have legibly written or printed on the face the applicable phrase:

• "Action to annul a marriage";
• "Action to declare the nullity of a void marriage";
• "Action for a divorce"; or
• "Action for a separation".

Papers must be served on an overseas spouse according to the laws of the jurisdiction in which he or she resides (which may include, depending on the jurisdiction involved, service pursuant to the Hague Convention or such other applicable treaties).

7 Finances

7.1 Does the court in your jurisdiction take the lead to facilitate financial settlement through court processes (eg, through a financial dispute resolution hearing)?

The court will usually facilitate financial settlement if the parties request such intervention. The court may either facilitate settlement discussions itself or refer the parties to a third-party neutral evaluator or mediator on consent, but only if such programmes exist in that county.

7.2 Spousal and child maintenance:

1. What orders can the court make in relation to spousal and child maintenance on divorce or judicial separation and how are the relevant amounts calculated?
2. What general principles apply to spousal and child maintenance? What specific factors will the court consider in deciding which orders to make in this regard?
3. When do spousal and child maintenance expire?
4. What happens to spousal and child maintenance after the death of the paying party or if the paying party is an adjudicated bankrupt?
5. Which bodies are responsible for issuing child support orders in your jurisdiction?
6. Does the child support regime vary depending on whether the parents' relationship was formalised (eg, marriage/civil partnership/co-habitation)?
7. Can a child (adult or minor) make a direct claim for child support? If so, under what circumstances?
8. What specific considerations and concerns should be borne in mind in relation to child support where the parties have international connections?
9. What are the main enforcement methods to ensure compliance with child support awards? What are the typical consequences of breach?

(a) What orders can the court make in relation to spousal and child maintenance on divorce or judicial separation and how are the relevant amounts calculated?

Courts may award spousal support and child support pursuant to the Family Court Act and the Domestic Relations Law. In the case of spousal support, only the Supreme Court may enter a final award of spousal support in the context of a divorce action.

New York's child support laws are set forth in:

• the Child Support Standards Act;
• Section 413 of the Family Court Act; and
• Section 240(1-b) of the New York Domestic Relations Law.

Child support is calculated based on:

• a percentage (determined by the number of children for which child support will be paid) of the total combined parental gross income, after specified deductions for Social Security and Medicare and New York City or Yonkers taxes; and
• the following factors, which will be considered by the court:
• • the financial resources of the custodial and non-custodial parent, and those of the child;
  • the physical and emotional health of the child and his or her special needs and aptitudes;
  • the standard of living that the child would have enjoyed had the marriage or household not been dissolved;
  • the tax consequences for the parties;
  • the non-monetary contributions that the parents will make towards the care and wellbeing of the child;
  • the educational needs of either parent;
  • a determination that the gross income of one parent is substantially less than the other parent's gross income;
  • the needs of the children of the non-custodial parent for whom the non-custodial parent is providing support who are not subject to the instant action and whose support has not been deducted from income pursuant to subclause (D) of clause (vii) of subparagraph five of paragraph (b) of this subdivision, and the financial resources of any person obliged to support such children; however, this factor may apply only if the resources available to support such children are less than the resources available to support the children who are subject to the instant action;
  • provided that the child is not on public assistance:
  • • extraordinary expenses incurred by the non-custodial parent in exercising visitation; and
    • expenses incurred by the non-custodial parent in extended visitation, provided that the custodial parent's expenses are substantially reduced as result thereof; and
  • any other factors that the court determines are relevant in each case.

The non-custodial parent pays what is called ‘basic child support' to the residential custodial parent to cover certain of the child's daily living and housing expenses, the amount of which is calculated as per the above analysis.

The parties pay additional expenses (‘add-ons') for the child in their respective pro rata shares of the combined parental income. These add-ons include:

• unreimbursed healthcare costs;
• childcare to allow the custodial parent to work or seek employment; and
• educational and enrichment expenses (education and enrichment expenses are discretionary for the court).

Temporary and final spousal support is calculated pursuant to formulas set forth in Sections 236(5-a) and (6) of the New York Domestic Relations Law. The formula is income based to a point, but provides the court with the ability to deviate from a formulaic approach based on its consideration of the following factors:

• the age and health of the parties;
• the present or future earning capacity of the parties, including a history of limited participation in the workforce;
• the need of one party to incur education or training expenses;
• the termination of a child support award during the pendency of the temporary maintenance award when the calculation of temporary maintenance was based on child support being awarded and which resulted in a maintenance award lower than it would have been had child support not been awarded;
• the wasteful dissipation of marital property, including transfers or encumbrances made in contemplation of a matrimonial action without fair consideration;
• the existence and duration of a pre-marital joint household or a pre-divorce separate household;
• acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include acts of domestic violence as provided in Section 459-a of the Social Services Law;
• the availability and cost of medical insurance for the parties;
• the care of children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws provided during the marriage that inhibits a party's earning capacity;
• the tax consequences for each party;
• the standard of living of the parties established during the marriage;
• the reduced or lost earning capacity of the payee as a result of having forgone or delayed education, training, employment or career opportunities during the marriage; and
• any other factor which the court shall expressly find to be just and proper.

(b) What general principles apply to spousal and child maintenance? What specific factors will the court consider in deciding which orders to make in this regard?

See question 6.2(a).

(c) When do spousal and child maintenance expire?

Child support expires upon the child's emancipation, which is generally age 21, unless the child:

• is married before then;
• enlists in military service; or
• reaches their 18th birthday and is fully self-supporting.

Child support may also be extended to a child's 26th birthday where a child is found to have developmental disabilities.

Spousal support expires at a time to be determined by the court, consistent with the durational guidelines set forth in Section 236(6) of the New York Domestic Relations Law:

Duration of marriage	Percentage of duration of marriage for which maintenance will be payable
Up to and including 15 years	15%-30%
Between 15 and 20 years	30%-40%
More than 20 years	35%-50%

It is possible for the court to order lifetime spousal support in certain circumstances.

Spousal support also terminates:

• upon the recipient spouse's remarriage;
• upon either party's death; or
• where the recipient spouse is cohabiting to the extent of holding himself or herself out as the spouse of the individual with whom he or she is cohabiting.

(d) What happens to spousal and child maintenance after the death of the paying party or if the paying party is an adjudicated bankrupt?

Spousal and child support are generally secured by a life insurance policy. If the payor does not have or cannot obtain reasonable life insurance, the former spouse and/or child may have a lien against the estate of the deceased for unpaid support.

Spousal and child support cannot usually be discharged in bankruptcy.

(e) Which bodies are responsible for issuing child support orders in your jurisdiction?

The Supreme Court and the Family Court.

(f) Does the child support regime vary depending on whether the parents' relationship was formalised (eg, marriage/civil partnership/co-habitation)?

No; but to the extent that the child resided with the parents in a joint household, the court may take this lifestyle into consideration.

(g) Can a child (adult or minor) make a direct claim for child support? If so, under what circumstances?

With regard to an unemancipated child, in exceedingly rare circumstances; in most cases, the residential custodial parent seeks support on behalf of a child.

Emancipated adult children may not seek a child support order.

(h) What specific considerations and concerns should be borne in mind in relation to child support where the parties have international connections?

Parties should consider:

• the child support laws of any foreign jurisdiction with which they have a connection; and
• whether New York child support orders are enforceable in such jurisdictions.

Further, the parties should consider:

• the bases for a modification of a New York order in those jurisdictions; and
• whether the same or different factors will be considered when calculating support under the foreign systems, in either an initial or modification proceeding.

New York has enacted processes to register foreign support orders for the purposes of enforcement and modification within New York State. The parties should be aware of similar processes in other jurisdictions.

(i) What are the main enforcement methods to ensure compliance with child support awards? What are the typical consequences of breach?

The enforcement methods include a motion or petition to enforce the parties' child support order (inclusive of any agreement incorporated in such order); or it may be possible to engage the Child Support Collection Unit's administrative remedies where payment is being made through the unit.

If the court finds that there has been a violation of a child support order, it may also invoke several enforcement remedies, such as:

• the entry of a money judgment (with 9% interest);
• sequestration;
• an undertaking;
• the revocation of various licences;
• an income deduction order; or
• a finding of civil or criminal contempt, including an order of commitment to serve a prison sentence.

The court may also award counsel fees to the non-defaulting party.

7.3 Asset division:

1. What orders can the court make in relation to the division of assets on divorce or judicial separation?
2. What general principles apply to the division of assets? What specific factors will the court consider in deciding which orders to make in this regard?
3. How does the court treat unreasonable conduct during the marriage in relation to financial matters (eg, reckless spending, gambling, dissipation of assets) when determining on capital division in divorce?
4. Is it common for expert evidence to be adduced and used in court (eg, forensic accountants, valuations of companies/properties)?
5. Is the family home treated differently compared to other family assets on divorce or judicial separation? If so, how?
6. Are trusts recognised in your jurisdiction? How are they treated on divorce or judicial separation?
7. What are the main enforcement methods to ensure compliance with financial orders issued on divorce or judicial separation? What are the typical consequences of breach?
8. If the parties are in agreement on financial matters, is non-judicial resolution of these possible? What requirements and restrictions apply in this regard and how does the process typically unfold?
9. Can the courts make financial orders in relation to a foreign divorce? What requirements and restrictions apply in this regard and who can apply for such orders?

(a) What orders can the court make in relation to the division of assets on divorce or judicial separation?

The court is empowered to:

• determine the characterisation of property as marital or separate; and
• order the division of marital assets in an equitable fashion, either:
• • in kind;
  • in the form of a distributive award; or
  • as a credit against other assets.

(b) What general principles apply to the division of assets? What specific factors will the court consider in deciding which orders to make in this regard?

New York law applies the principles of equitable distribution, which does not necessarily mean the equal distribution of marital assets. The court will take into account the following factors, individually or collectively:

• the income and property both at the time of marriage and at the time of the commencement of the action;
• the duration of the parties' marriage and the age and health of both parties;
• the need of a custodial parent to occupy or own the marital residence and to use or own its household effects;
• the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution;
• the loss of health insurance benefits upon dissolution of the marriage;
• any award of maintenance under Section 246(B)(6) of the New York Domestic Relations Law;
• any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and the career potential of the other party;
• the liquid or non-liquid character of all marital property;
• the probably future financial circumstances of each party;
• the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party;
• the tax consequences for each party;
• the wasteful dissipation of assets by either spouse;
• any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
• whether either party has committed an act or acts of domestic violence against the other party and the nature, extent, duration and impact of such act or acts;
• in relation to a companion animal, the best interests of such animal. ‘Companion animal' here has the same meaning as in Section 350(5) of the Agriculture and Markets Law; and
• any other factors which the court expressly finds to be just and proper.

(c) How does the court treat unreasonable conduct during the marriage in relation to financial matters (eg, reckless spending, gambling, dissipation of assets) when determining on capital division in divorce?

Wasteful dissipation of assets and transfers or encumbrances made in contemplation of a matrimonial action are two factors that courts will consider when fashioning an equitable distribution award. The courts may award the non-offending party a financial credit.

The New York courts may also take domestic violence into account.

(d) Is it common for expert evidence to be adduced and used in court (eg, forensic accountants, valuations of companies/properties)?

Expert reports and testimony regarding financial and property matters is common, albeit more prevalent in high-net-worth matters.

(e) Is the family home treated differently compared to other family assets on divorce or judicial separation? If so, how?

The family home is treated differently from other marital assets to the extent that the court may consider the need of any child to continue residing in the marital residence during and/or after the conclusion of the matrimonial action. This may affect the timing of disposition of the family home, although it will not generally alter the parties' respective financial interests in the marital property value of the home.

(f) Are trusts recognised in your jurisdiction? How are they treated on divorce or judicial separation?

Yes.

The treatment of a trust depends largely on:

• the circumstances surrounding the creation of the trust; and
• the terms of the trust.

The case law is varied with regard to how trust assets are treated in the context of equitable distribution. For example, to the extent that a trust was created by a non-party for the benefit of one party as an estate planning mechanism, or both parties consented to and purposefully created a trust for the benefit of each other and/or their children, the trust assets are more likely to be considered outside of the marital estate, while the trust terms remain intact. See Oppenheim v Oppenheim, 168 AD 3d 1085 (2nd Dept 2019).

However, factors may be present which warrant piercing the trust or providing for an equitable distribution credit for marital assets that are contributed to a trust. This is especially so where:

• marital assets have been placed into trust:
• • without one party's consent; or
  • so as to defeat a spouse's rights to access them; or
• the trust itself is invalid.

See Riechers v Riechers, 267 A.D.2d 445 (2nd Dept 1999); and Surasi v Surasi, 2001 NY Slip Op. 40408(U) (Supreme Court, Richmond County 2001).

(g) What are the main enforcement methods to ensure compliance with financial orders issued on divorce or judicial separation? What are the typical consequences of breach?

A party may seek an order for numerous remedies, including but not limited to:

• specific performance;
• contempt; and
• a money judgment for unpaid distribution.

Additionally, the court may award counsel fees and costs to the non-defaulting party.

(h) If the parties are in agreement on financial matters, is non-judicial resolution of these possible? What requirements and restrictions apply in this regard and how does the process typically unfold?

Yes, the parties may resolve financial matters by written stipulation. There is no one way in which this process typically unfolds; however, to obtain a judgment of divorce, the parties will still be required to file certain documents as well as their agreement with the court.

(i) Can the courts make financial orders in relation to a foreign divorce? What requirements and restrictions apply in this regard and who can apply for such orders?

If the foreign divorce decree was obtained following due process and does not violate the public policy of New York State, the court may address financial orders to the extent left open by the foreign decree.

8 Child custody

8.1 What general principles apply to custody and access arrangements? What specific factors will the court consider in deciding which orders to make in this regard?

The guiding principle for custody is the best interests of the child. Courts will consider numerous factors in the context of the child's best interests, including:

• the global and historical circumstances of the child's upbringing;
• the child's relationship with his or her parents;
• the child's relationship to his or her community; and
• the child's specific needs.

8.2 Are unmarried couples/same-sex couples entitled to the same claims as married couples in relation to children? Are legitimate and illegitimate children treated identically by the court in your jurisdiction?

Yes.

Unmarried and same-sex couples may be advised to take certain affirmative steps to establish parentage, which may be established by various routes.

8.3 Does the court in your jurisdiction take the lead to facilitate settlement regarding children matters through court processes (eg, through a child dispute resolution hearing)?

Similar to financial settlements, parties may settle child-related matters out of court; but the courts may intervene to facilitate settlement at the request of the parties.

8.4 What kinds of experts will the court engage to assist it in deciding on what is best for the children (eg, designed social workers, clinical psychologists)?

Courts may appoint professionals in a custody proceeding, including:

• forensic custody evaluators (mental health professions such as psychologists and psychiatrists);
• guardians ad litem; and
• parent coordinators.

The court may also appoint an attorney for the child.

8.5 What requirements and restrictions apply to the removal of a child from the jurisdiction, both temporarily and permanently? What factors will the court consider in deciding on such a request?

In determining an application to relocate, courts will place the best interests of the child at the forefront of their determination. In this situation, the ability of the child to maintain a relationship with the non-moving parent is given consideration but other factors are also considered. See Tropea v Tropea, 87 N.Y.2d 727 (1996).

8.6 What regime applies to the international abduction of children in your jurisdiction?

The United States is a treaty partner to the Hague Convention on the Civil Aspects of International Child Abduction.

9 Surrogacy and adoption

9.1 What laws and regulations govern surrogacy agreements in your jurisdiction? What specific considerations and concerns should be borne in mind in this regard?

Article 5-C of the Family Court Act governs surrogacy agreements.

9.2 Are surrogacy arrangements legal in your jurisdiction?

Yes.

9.3 Are the commissioning parents recognised as legal parents in your jurisdiction and what do they need to do to establish a legal relationship with their children born through surrogacy arrangements?

The intended parents of a child born via surrogacy under a surrogacy agreement that complies with the requirements of Article 5-C of the Family Court Act are the legal parents of the child. Neither the surrogate nor the surrogate's spouse, if any, is a legal parent of the child.

Intended parents may petition the appropriate court to be recognised as legal parents. Such petition may be commenced at any time after the surrogacy agreement has been executed, with the person acting as surrogate and all intended parents being necessary parties to the action.

9.4 What laws and regulations govern adoption in your jurisdiction? What specific considerations and concerns should be borne in mind in this regard?

Adoption is governed by Article VII of the New York Domestic Relations Law.

9.5 Do the regimes discussed in this question have equal application to same-sex couples? If not, please highlight the differences in treatment.

Yes.

10 Dispute resolution

10.1 What alternative dispute resolution (ADR) methods to resolve family law matters are available in your jurisdiction?

ADR (mediation, arbitration and/or collaborative law) is available privately.

To an extent, the courts have established county-specific mediation and neutral evaluation programmes – some that mandate party participation and some that are voluntary. The courts may also directly facilitate settlement conferences.

10.2 What specific considerations and concerns should be borne in mind in relation to ADR of family matters in your jurisdiction?

ADR can be a highly cost-effective way to resolve an action, especially if both parties are committed to the process.

However, there are some limitations to ADR. For example, there is no formal oversight if the parties are engaging in the process outside the court system. Further, if the parties are utilising a collaborative law process, their attorneys are typically required to withdraw in the event of litigation and each party must retain new counsel.

10.3 What specific considerations and concerns should be borne in mind where family law disputes involve foreign parties?

Care should be taken to include provisions in any agreement or court order – be it parenting related or financial – regarding the registration and enforcement/modification of any such provisions of the agreement or order in the jurisdictions:

• where the parties reside; and/or
• where they desire to have the agreement or order effectuated.

This may require consultation with foreign counsel to ensure that:

• the provisions are possible to effectuate; and
• the parties understand the processes involved in the different jurisdictions.

With respect to an agreement, it may be beneficial to adopt choice of law and choice of forum provisions to limit the possibility of multi-jurisdiction litigation.

11 Domestic violence

11.1 How can a party seek immediate assistance from the court in a domestic violence situation to protect himself or herself and the children, and what kinds of orders can the court make in this regard?

Either the Supreme Court, the Family Court or the Criminal Court (if an arrest is made and the action is brought by the state) may enter a temporary order of protection for the party seeking relief, directing the other party:

• to stay away from the person, home, work or other location of the victim; and
• to refrain from direct or indirect communication with the victim.

Such provisions may also encompass the children, subject to further orders of the court regarding each party's access to the children. It is not uncommon for the court to modify the standard provisions of a temporary order of protection so that the parties may discuss matrimonial or child-related matters and/or both be present at events and access transitions involving the children.

Following a trial, each of the foregoing courts may enter a final order of protection for a period not exceeding a statutorily mandated number of years, depending on the specific circumstances of the case and the scope of jurisdiction of the court (Supreme Court, Family Court or Criminal Court) from which the relief is sought.

11.2 Are there any differences in terms of the protection offered in a domestic violence situation between married and unmarried couples and their children?

Married couples have the option of requesting an order of exclusive use and occupancy of the marital residence under Section 234 of the New York Domestic Relations Law, either in addition to or apart from requesting an order of protection. Such party must demonstrate that:

• it 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.

See Taub v Taub, 33 A.D.3d 612 (2nd Dep't 2006).

11.3 How are these orders enforced and by whom?

If a temporary or final order of protection is violated, this may result in:

• the arrest of the violating party; and
• further criminal or civil court proceedings adjudicating the violation.

11.4 How soon will the party's application be dealt with in these circumstances?

A request for a temporary order of protection is almost always heard on the same day the application is made.

11.5 Does the court have inherent jurisdiction to make a child a ward of court?

Under extreme circumstances, yes. The court may order the removal of a child from his or her home, to be placed in the care of a social services agency.

12 Trends and predictions

12.1 How would you describe the current family law landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

New York recently entered a period of legislative transformation. Within the past two years, we have seen:

• the enactment of the Child-Parent Security Act (determining paths to parentage for children born with reproductive assistance);
• the inclusion of domestic violence as a factor in equitable distribution; and
• the expansion of the Child Support Standards Act to extend support to age 26 where a child experiences developmental disability.

Another area that has undergone development is the way in which the court assesses the wellbeing of family pets. In 2021, New York introduced a provision in the Domestic Relations Law that the court will consider the "best interests" of companion animals as part of equitable distribution.

13 Tips and traps

13.1 What would be your recommendations for managing relationship breakdown as painlessly as possible in your jurisdiction and what potential pitfalls would you highlight?

It is important to gather information at the outset, to understand:

• how the court process works;
• the length of time and potential costs involved; and
• the alternative methods of resolving disputes.

All paths to resolution are customised to the parties, so what works to resolve one case may require a different approach in another. While the client should be clear about his or her objectives, he or she should remain flexible and open to creative, ‘outside-the-box' ways of resolving a case.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.