Family Law Comparative Guide

• Jurisdiction: New York,United States
• Law Firm: Rabin Schumann and Partners LLP
• Subject Matter: Family and Matrimonial, Family Law
• Author: Ms Gretchen Beall Schumann and Matt Rohrer
• Published date: 20 September 2023

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...