Divorce, New York Family Law Group

What Can Your Spouse Use Against You in a New York Divorce?

Last updated on September 18, 2023

Going through a divorce is an incredibly challenging experience on multiple levels. Emotionally, it can involve unraveling a once cherished relationship, leading to a rollercoaster of intense feelings such as sadness, anger, and betrayal. The weight of these emotions can make it difficult to maintain clarity and focus throughout the divorce process. Moreover, the legal complexities add another layer of difficulty and, in a contentious or fault-based divorce, your spouse may feel compelled to use evidence of your actions or behavior against you in order to secure a more favorable outcome on the divorce. 

When entering into a divorce in New York, it is important to be aware of the potential evidence that your spouse may use against you. Awareness of how your actions and decisions, such as posting about your social media during the divorce, can help you avoid pitfalls during the legal proceedings and help you prepare for the divorce financially and emotionally. It is crucial to consult with an experienced New York City divorce attorney who can provide personalized guidance based on your specific circumstances. At New York Family Law Group, our team of skilled Manhattan divorce attorneys can help you understand potential areas of vulnerability and advise you on how to navigate the divorce process while protecting your rights and interests. Contact us today at (347) 212-5113 to schedule a consultation.

Grounds for Divorce in New York

Prior to the introduction of the no-fault divorce in 2010, obtaining a divorce in New York required that spouses prove marital faults such as adultery, cruelty, or abandonment. However, New York now permits no-fault divorces which simplifies the process for many couples.

Fault-Based Grounds 

When obtaining a divorce using fault-based grounds, the spouse applying for divorce is required to prove that the other spouse is at fault for the breakdown of the marriage. The fault-based grounds for divorce in New York include:

  • Cruel and Inhuman Treatment: This refers to physical or mental cruelty that endangers the safety or well-being of the spouse seeking the divorce.
  • Abandonment: If one spouse has abandoned the other for at least one year continuously, it can be considered a ground for divorce. 
  • Imprisonment: If one spouse has been imprisoned for three or more consecutive years after the marriage, it can be a ground for divorce.
  • Adultery: If one spouse can prove that the other engaged in voluntary sexual relations with someone outside the marriage, it can be a valid ground for divorce.
  • Living Apart: If spouses have lived apart for a continuous period of at least one year under a legal separation agreement, it can be considered a ground for divorce.

No-Fault Grounds 

New York also allows for divorce on no-fault grounds, meaning neither spouse is blamed for the breakdown of the marriage. The no-fault grounds for divorce in New York include the irretrievable breakdown of the relationship. Using this ground requires stating that the marriage has irretrievably broken down for a period of at least six months, making any attempts at reconciliation unlikely.

Residency Requirements and Jurisdiction

New York has residency requirements to ensure that a court has jurisdiction over the spouses and the divorce process. To file for divorce in New York, couples must meet one of the following residency requirements:

  • Either spouse has been a resident of New York for a continuous period of two years before filing for divorce.
  • Either spouse has been a resident of New York for a continuous period of one year and (a) was married in New York, (b) lived in New York as a married couple, or (c) the grounds for divorce occurred in New York.
  • Both spouses are residents of New York on the date of filing, and the grounds for divorce occurred in New York.

If the residency requirements are met, the divorce proceedings can commence with the filing of the papers to the NY county where either spouse resides.

Differences Between Contested and Uncontested Divorces

Divorces can be categorized into two types: contested and uncontested.

In a contested divorce, spouses disagree on one or more issues, such as child custody, property division, or spousal support, and cannot reach a settlement. These cases are usually more complicated and require court intervention to resolve the disputed matters. Contested divorces are generally more time-consuming and costly than uncontested divorces. The litigation process can involve disputed motions, lengthy discovery, negotiations, and potentially a trial.

For an uncontested divorce, both spouses agree on all issues related to the marriage, including child custody, property division, and spousal support. Uncontested divorces are typically finalized more quickly and at a lower cost than contested divorces, as they do not involve a lengthy litigation process. Instead, a couple can come to an agreement, draft a settlement, file the papers with the court, and after a mandatory waiting period, the judge will sign the final divorce decree.

If you are considering filing for divorce in New York, it is highly recommended that you consult with an experienced divorce attorney to help you navigate the complex legal process and ensure your rights are protected.

Aspect Contested Divorce Uncontested Divorce
Disagreements Spouses disagree on one or more issues Spouses agree on all issues
Legal Process Requires court intervention and litigation Does not involve extensive litigation process
Time Generally more time-consuming and can be lengthy Typically finalized more quickly
Cost Usually more expensive due to legal proceedings Generally lower cost compared to contested divorce
Settlement Settlement reached through negotiation or trial Settlement reached through agreement
Process Involves contested motions, lengthy discovery, negotiations, and potentially a trial Involves drafting a settlement, filing the papers with the court, and waiting for judge’s approval

Financial Factors in New York Divorces

Divorces in New York involve a variety of financial factors that can significantly impact the outcome for both spouses. Understanding the nuances of asset distribution, property classification, and spousal support is crucial for anyone seeking a dissolution of their marriage in the state.

Equitable Distribution of Assets

In New York, the courts use a system of equitable distribution when dividing marital property in a divorce. This means that the assets will be divided in a manner that the court deems fair and just, but not necessarily equal. It’s important to note that equitable does not always mean a 50/50 split; it means a fair and just division based on the circumstances of each spouse.

Equitable distribution takes into consideration several factors, such as the financial resources of each party, the length of the marriage, and the existence of any prenuptial agreements. It can be a complex process, as it involves evaluating each spouse’s contributions to the marriage, financial or otherwise.

Marital Property vs. Separate Property

In the context of a New York divorce, property is classified as either marital or separate. Marital property includes all property acquired by either spouse during the marriage, regardless of title or ownership. This could include income earned, real estate, savings, investments, retirement accounts, and even businesses started during the marriage.

Separate property, on the other hand, is property acquired either before the marriage or through inheritance, gift, or personal injury compensation during the marriage. Separate property can also include property that both spouses agree in writing to exclude from the marital estate.

It’s important to understand the distinction between these two classifications, as marital property is subject to equitable distribution, while separate property remains the sole property of the spouse who owns it.

Factors Considered in the Division of Assets

When determining the equitable distribution of marital property, New York courts may consider a variety of factors, including:

  • The duration of the marriage.
  • The age and health of each spouse.
  • The income and property of each spouse at the time of the marriage and at the time of the divorce.
  • The needs of the custodial parent to provide for the children.
  • The loss of inheritance or pension rights upon divorce.
  • The contributions each spouse made to the acquisition or appreciation of marital assets, including non-financial contributions such as homemaking and childcare.
  • The value of any separate property each spouse owns.
  • Any existing prenuptial or postnuptial agreements.
  • Whether either spouse attempted to hide or dissipate marital assets in anticipation of divorce.
  • The tax consequences of the property division.

Again, the goal of equitable distribution is not to divide marital assets equally, but rather fair and justly based on the circumstances of each spouse.

Spousal Support or Alimony Considerations

In addition to the division of assets, divorcing couples in New York may also have to navigate the issue of spousal support, commonly known as alimony. The purpose of spousal support is to provide financial assistance to the lower-earning spouse, allowing them to maintain a similar standard of living as they enjoyed during the marriage.

New York courts consider numerous factors when determining whether to award spousal support and in what amount. Some of these factors include:

  • The income and assets of each spouse.
  • The length of the marriage.
  • The age, physical health, and emotional health of both spouses.
  • The standard of living established during the marriage.
  • The earning capacity of both spouses and their ability to become self-supporting.
  • The need for one spouse to receive education or training to become self-supporting.
  • The contributions either spouse made to the other’s career, education, or earning capacity.
  • The presence of children and the need for one spouse to care for them.
  • The tax consequences of spousal support.

Ultimately, the financial factors involved in a New York divorce can be quite complex. Having a thorough understanding of the various aspects of asset distribution and spousal support is essential to protecting your interests and achieving a fair outcome.

Behavioral Factors in New York Divorces

When couples decide to end their marriage, there may be various factors contributing to their decision. In the state of New York, grounds for divorce can be based on either fault or no-fault grounds. Irretrievable breakdown of the marital relationship for a period of at least six months is considered a no-fault ground for divorce. However, there are certain behavioral issues or actions that can significantly impact the outcome of a divorce.

Adultery as a Ground for Divorce

Adultery is defined as a voluntary engagement in sexual intercourse with a person other than one’s spouse during the course of the marriage. In New York, adultery is considered a fault ground for divorce, meaning the spouse who has been unfaithful can be held responsible for the breakdown of the marriage. To successfully prove adultery, the accusing spouse must provide tangible evidence or testimony that is clear and convincing. This may include photographs, private investigator reports, or witnesses. It is important to note that proving adultery can be difficult, as it often requires a high standard of evidence, and the accused spouse may be able to use certain defenses, such as entrapment, recrimination, or condonation.

Abuse and Domestic Violence

Domestic violence, which may include physical, emotional, or psychological abuse, is another ground for divorce in New York. Abuse may take various forms, such as intimidation, threats, stalking, or assault. Victims of domestic violence can request a protective order or restraining order to protect themselves from further abuse. In divorce cases involving abuse, the abusive spouse’s behavior can negatively affect their case in several ways, including through the division of marital property, spousal maintenance, and custody and visitation arrangements for minor children. Courts may consider the abusive spouse’s behavior when determining the best interests of the children and may limit their parental rights or award supervised visitation.

Abandonment or Constructive Abandonment

One spouse may claim abandonment or constructive abandonment as grounds for divorce in New York. Abandonment refers to one spouse leaving the marital home without just cause and with the intent of not returning for at least one year. Constructive abandonment occurs when one spouse refuses to engage in sexual relations with the other spouse for a period of one year or more, without just cause. In both abandonment and constructive abandonment cases, the spouse who has been abandoned must prove that the other spouse intentionally left or refused to engage in sexual relations without a valid explanation.

Substance Abuse and Addiction

Addiction to drugs, alcohol, or gambling can negatively impact a marriage and ultimately lead to divorce. Substance abuse and addiction can affect multiple aspects of the divorce process, such as the division of marital assets, spousal support, and child custody arrangements. If one spouse is struggling with addiction, the other spouse may request that the court mandate counseling, rehabilitation, or other measures to protect the children’s best interests.

Negative Conduct During the Marriage and the Divorce Proceedings

Aside from the grounds for divorce mentioned above, there are other behavioral factors that can have adverse effects on the divorce process. For example, a spouse’s dishonesty or financial misconduct can impact the distribution of marital assets, while parental alienation can affect child custody arrangements. Although New York is an equitable distribution state, meaning that the court will divide marital assets in a manner that is fair to both spouses, a judge may consider one spouse’s outrageous or egregious conduct when making property distribution decisions.

Behavioral factors can significantly affect the divorce process in New York, and the impact will depend upon the specific ground for divorce and the evidence presented. It is crucial for those considering divorce to consult with an experienced New York divorce attorney to better understand the potential consequences of their spouse’s conduct in the divorce proceedings.

Parental Factors in New York Divorces

Divorce is a challenging process for all parties involved. But when the divorcing spouses share children, the process becomes even more complex as both parents must navigate custody disputes, child support payments, and maintaining healthy relationships with their children post-divorce. 

Child Custody and Parenting Plans

In New York divorce cases, child custody is often one of the most contentious issues. Parents must decide on a custody arrangement and develop a parenting plan that outlines the division of parenting time and decision-making responsibilities. There are two primary types of custody in New York: legal custody and physical custody.

Legal custody refers to the right to make major decisions on behalf of the child, including decisions about education, religion, and medical care. Physical custody refers to where the child will primarily reside. Both legal and physical custody can be shared (joint custody) or given solely to one parent (sole custody).

In New York divorces, the court usually prefers to award joint legal custody, as this arrangement allows both parents to participate in making major decisions for the child. However, the court may award sole legal custody if one parent is deemed unfit or if the parents cannot effectively communicate and co-parent.

The best interests of the child are always the highest priority when determining custody arrangements in New York. Factors that the court may consider when determining the best interests of the child include:

  • Each parent’s ability to provide a stable, nurturing environment
  • The child’s relationship with each parent
  • Each parent’s ability to cooperate and communicate effectively
  • The child’s preference, if the child is old enough to express an opinion
  • History of domestic violence or abuse
  • Each parent’s mental and physical health

Child Support Considerations

New York law requires noncustodial parents to contribute financially to the support of their children. Child support is calculated according to state guidelines, which take into account the incomes of both parents, the number of children being supported, and the specific costs associated with raising the children.

In addition to basic child support payments, non-custodial parents may also be required to contribute to costs such as childcare, education, and medical expenses. Child support payments typically continue until the child reaches the age of 21, although they may be terminated sooner if the child becomes emancipated.

It is important to note that child support and custody are separate legal issues. A noncustodial parent is required to pay child support even if they are not granted visitation or custody rights.

Parental Alienation and Interference with Visitation

Parental alienation occurs when one parent intentionally manipulates the child against the other parent or undermines the child’s relationship with the other parent. This often occurs in high-conflict divorces and can be emotionally harmful to both the child and the targeted parent.

New York courts take allegations of parental alienation very seriously. If a judge determines that one parent has engaged in alienating behavior, it could impact the outcome of the custody case, result in a modification of the existing custody order, or even lead to the alienating parent being held in contempt of court.

Interference with visitation can also be a major issue during and after a divorce in New York. Violations of court-ordered visitation or parenting time can result in legal ramifications, including modification of the custody order, fines, or in extreme cases, loss of custody rights.

Parents going through a divorce in New York should prioritize the best interests of their children, communicate effectively with each other, and abide by court-ordered custody and visitation stipulations to avoid unnecessary stress and complications for their children.

Using Evidence in a New York Divorce

Divorce is a challenging and complex process. It can be an emotional and financially draining experience for both parties involved. One of the most critical aspects of a divorce, especially a contested one, is the collection and presentation of evidence to support your case.

Text Messages, Emails, and Other Written Communications

In today’s digital age, written communications, such as text messages and emails, are often used as evidence in divorce cases. These communications can be vital in proving infidelity, abusive behavior, or other actions that are relevant to the issues being contested in the divorce. Courts may also consider other written documents like letters, journals, and diaries that offer information pertaining to the case.

It is crucial to note that it is illegal to access another person’s electronic communications without their consent. Therefore, if you believe that text messages or emails will be beneficial to your case, it is essential to obtain these communications legally, ideally with the help of an attorney.

Photographs and Video Recordings

Photographs and video recordings can be powerful pieces of evidence in a divorce case. They can be used to demonstrate a spouse’s behavior, their treatment of their children, or even the state of their living conditions. Additionally, photos and videos can document important events or dates that may be critical in a custody or visitation dispute.

However, it is crucial to consider privacy issues when presenting photographs and videos as evidence. Obtaining these materials without the subject’s consent, such as through hidden cameras, may not be admissible in court.

Witness Testimony and Affidavits

Witness testimony can provide first-hand accounts of behaviors, incidents, or character observations. These testimonies can come from friends, family members, coworkers, or even professionals such as therapists and doctors. Affidavits are written statements made under oath that can provide similar information.

When selecting witnesses, choosing credible, reliable individuals who can provide relevant information to support your case is essential.

Legal Procedures for Obtaining Evidence

To obtain and use evidence during divorce proceedings, it is essential to get the information in a lawful manner. If obtained illegally, the evidence may be deemed inadmissible and thus be unusable to support your claims. Working with a skilled attorney can allow you to get legal orders to compel your spouse or other parties to produce information pertinent to the case. Aside from legal orders, your attorney can also use other methods including the following:

Discovery Process

Discovery is a formal process in which both parties involved in the divorce gather and exchange information relevant to their case. This process can include requesting documents, interrogatories (a series of written questions that require written answers), and admissions of specific facts. Your attorney can aid you in navigating the discovery process to ensure you efficiently obtain the necessary evidence.

Subpoenas and Depositions

A subpoena is a legal document that requires an individual to produce documents or testify in a case. Subpoenas can be used to obtain financial records, emails, texts, or other relevant documents from either spouse or a third party.

A deposition is an oral testimony given under oath, typically conducted outside of court. Depositions can be used to gather information from witnesses, including the opposing party, that may be vital to your case. Legal counsel is present during depositions, and a transcript is created for possible use in court.

Although investigating and obtaining evidence by yourself can seem like an exciting prospect, especially in your enthusiasm to prove your spouse’s indiscretions, it is crucial to get information legally to avoid jeopardizing your case.

Risks of Using Social Media During a Divorce

Social media platforms can be a double-edged sword during a divorce. While they can serve as a valuable source of evidence, they can also be a potential source of harm to your case. Anything you post on social media can potentially be used against you in court, such as pictures or posts that suggest irresponsible behavior or contradict your claims.

It is wise to exercise caution when using social media during a divorce. Avoid discussing your case, posting photos or content that could be misconstrued, or engaging in any behavior that could negatively impact the outcome of your divorce. Consider consulting with an attorney about the potential risks and benefits of using social media during your divorce.

Protecting Yourself During a New York Divorce

Divorce can be a difficult and complicated process for both parties involved, and protecting yourself is crucial to ensure a fair and reasonable outcome. There are various steps you can take to protect your interests and your privacy during a divorce in New York.

Strategies for Managing Your Online Presence

One important yet often overlooked aspect of protecting yourself during a divorce is managing your online presence. Since everything you post on social media or share online can potentially be used against you in court, it’s essential to be cautious and mindful of your digital footprint.

  • Set your social media profiles to private: If you have social media accounts, it’s best to adjust your privacy settings so that only your friends and family can view your posts. Avoid accepting friend requests from people you don’t know personally, as they could be potential adversaries trying to access your information.
  • Limit sharing personal details: Be cautious about sharing any details about your personal life, including your relationship status, financial situation, or the progress of your divorce. Keep your digital communication focused on non-controversial topics, and avoid engaging in discussions about your divorce or spouse.
  • Change passwords: To ensure your privacy, change all passwords for email, social media, and online banking accounts. This prevents unauthorized access to your confidential information by your spouse or anyone else involved in the divorce proceedings.
  • Review and remove sensitive information: Conduct a thorough assessment of your online presence and remove anything that could be potentially damaging in the context of your divorce. This includes deleting or making private photos, videos, or posts that have personal or sensitive content.
  • Be careful with online dating: If you decide to start dating again, be cautious about using online dating platforms. Your spouse or their attorney may be monitoring these sites in an attempt to gather evidence for custody or alimony disputes.

Keeping Detailed Records and Documentation

Another essential aspect of protecting yourself during a divorce is maintaining accurate and comprehensive documentation. This can greatly help your case, especially when it comes to issues of child custody, spousal support, or the division of assets.

  • Financial records: Gather and organize all financial records, including bank statements, credit card bills, tax returns, and any documents related to investments, loans, or other financial transactions. These records can help establish your financial situation and ensure a fair division of assets.
  • Communication logs: Keep detailed logs of all communication between you and your spouse, including emails, text messages, and even social media interactions. These records can provide crucial evidence in case there are disputes or allegations of misconduct during the divorce proceedings.
  • Living arrangement history: If child custody is an issue, document your involvement in your child’s life, including daily routines and activities, school meetings, and medical appointments. This information can help demonstrate your commitment to your child’s well-being and support your custody claim.
  • Personal property inventory: Create a list of all the property you and your spouse own, both jointly and separately. This includes real estate, vehicles, furniture, jewelry, and any other valuable items. Having a thorough inventory can help ensure a fair and equitable division of property during the divorce.

Retaining Legal Representation

Navigating the complexities of a divorce can be overwhelming, and it is important to have an experienced attorney to guide you through the process. Hiring a knowledgeable divorce lawyer is essential for protecting your rights and ensuring a fair outcome.

  • Research and interview potential attorneys: Look for a lawyer with expertise in divorce and family law, as they will be better equipped to handle the nuances and challenges specific to your case. Read online reviews, ask for personal referrals, and interview multiple candidates before making a decision.
  • Understand fees and costs: Be clear on the attorney’s fee structure, including hourly rates, retainers, and any additional costs that may be associated with your case. Knowing these expenses upfront can help you budget accordingly and minimize financial stress during the divorce process.
  • Communicate openly and honestly: Establish open lines of communication with your lawyer and provide them with all the necessary information to represent your case effectively. Remember that they are trained professionals and work in your best interest to achieve the best possible outcome for you.

By managing your online presence, keeping detailed records, and retaining legal representation, you can protect yourself and your interests throughout the divorce process in New York. Although it may be challenging, remaining proactive and vigilant will help ensure a fair and reasonable resolution to your divorce.

Working with an Experienced New York City Divorce Attorney from New York Family Law Group

Getting a divorce attorney can help provide legal advice and guidance on the divorce process, including applicable laws and regulations. They can assist with filing the divorce petition, negotiating settlements, and representing your best interests in court proceedings. They can also prepare and draft legal documents needed for the divorce process. Overall, hiring a divorce attorney can help you achieve a fair resolution of your divorce case while protecting your and your family’s interests.

If you’re facing a divorce and need trusted legal guidance to help you navigate the process and protect your rights, look no further than New York Family Law Group. With over 30 years of experience, our New York City divorce attorneys have helped countless clients achieve favorable outcomes in their cases and we’re here to do the same for you. Contact us today at (347) 212-5113 to schedule a consultation.



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