USA – NEW YORK Law and Practice Contributed by: Gretchen Beall Schumann and Rashel Zywica, Schumann Law LLC
shift to a more formulaic approach in recent years, particularly with respect to duration. Domestic Relations Law Section 236 (B) provides two methods for determining temporary and post-divorce maintenance, along with a list of factors the court must consider for each. New York courts are empowered by statute (DRL § 236 (B)) to award post-divorce maintenance. There are also durational guidelines for maintenance provided by statute, as follows: • in marriages lasting 0 to 15 years, payments should last 15% to 30% of the marriage’s length; • in marriages lasting 15 to 20 years, payments should last 30% to 40% of the marriage’s length; and • in marriages lasting over 20 years, payments should last 35% to 50% of the marriage’s length. 2.5 Prenuptial and Postnuptial Agreements Prenuptial and postnuptial agreements are recognised in New York State. New York Domestic Relations Law Section 236 (B) (3) explicitly provides: “An agreement of the parties made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties and acknowledged or proven in the manner required to entitle a deed to be recorded”. Foreign agreements are largely enforced, provided that the necessary formalities are met for the agreement to be valid and enforceable. An agreement must not violate New York public policy, and there are limited addi ‑ tional grounds on which an agreement, or particular provisions thereof, may be deemed unenforceable, including fraud, duress, coercion or unconscionability. New York courts will enforce prenuptial and postnup ‑ tial agreements if they meet general contract stand ‑ ards, meaning the agreement cannot be the product of fraud, duress, or coercion, and its terms cannot be unconscionable or violate public policy. A New York marital agreement must be executed by the parties and acknowledged in a manner required for a deed to be recorded, per the New York Real Property Law. Otherwise, a court will not be author ‑
ised to enforce the agreement. Child support and child custody terms are usually not included in prenuptial and postnuptial agreements. 2.6 Cohabitation: Division of Assets Between Unmarried Couples There are no financial rights that arise solely from cohabitation. Certain civil claims may be possible if the couple owns jointly titled property, or they have entered into a cohabitation agreement. A couple may also enter into a domestic partnership, but the finan ‑ cial rights associated with a domestic partnership are limited. In New York State, cohabitants do not acquire any rights by virtue of length of cohabitation or children, etc. New York State does not recognise common law marriages, and the length of cohabitation does not generate rights between the couple, regardless of whether there are children. The laws regarding child custody apply to both children of a married couple and children of unmarried couples. 2.7 Enforcement of Financial Orders A party may seek an order for numerous remedies, including, but not limited to, specific performance, contempt and a money judgment for unpaid distribu ‑ tion. Additionally, the court may award counsel fees and costs to the non-defaulting party. Financial claims can be made following a foreign divorce, to the extent that issues are left open by the foreign judgment for enforcement and/or modification by another jurisdiction or where the laws of the State of New York allow for enforcement and/or modifica ‑ tion of the foreign judgment. 2.8 Media Access and Transparency in Financial Proceedings The media and press may report on financial cases when the courtroom is open to the public. In rare instances, the court may close the courtroom, primar ‑ ily when there are sensitive issues involving children, or the court may issue a “gag” order, preventing the parties from disseminating certain information. The court records for divorce and family matters in the New York supreme and family courts are sealed
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