Common Myths About Divorce in New York — And the Truth Behind Them

Divorce is one of the most misunderstood areas of the law. Many people enter the process relying on misinformation from friends, family or the internet, which can create unnecessary stress and confusion. Understanding the facts can help you make informed decisions and better protect your rights.

Below are some of the most common myths about divorce in New York, and the reality behind them.

MYTH: You cannot get divorced if your spouse does not want a divorce.

FACT:

You do not need your spouse’s consent to get divorced in New York.

New York is a “no-fault” divorce state, meaning that one spouse can seek a divorce based upon an irretrievable breakdown of the marriage for at least six months. If one party wants a divorce, the other spouse cannot prevent the divorce from ultimately moving forward simply because they do not agree with it.

While a spouse may contest issues such as custody, property division or support, they generally cannot stop the divorce itself.

MYTH: Everything gets split 50/50 in a divorce.

FACT:

New York divides assets using equitable distribution; which means assets are divided fairly, but not necessarily equally.

Many people assume that divorce automatically results in each spouse receiving exactly half of everything. In reality, New York courts consider a variety of factors when dividing marital property, including the length of the marriage, each party’s income and contributions, future financial circumstances, and more.

In some cases, an equal division may be appropriate. In others, the court may determine that a different distribution is more equitable under the circumstances.

MYTH: Whoever files for divorce first has an advantage.

FACT:

Filing first generally does not affect how the court decides the outcome of the case.

There is a common belief that the spouse who files first somehow gains the “upper hand.” In most New York divorce cases, this is simply not true. The court applies the same legal standards regardless of which party commenced the action.

That said, filing first may provide certain practical advantages in limited situations, such as selecting the venue or framing the initial requests for relief. However, it does not determine who “wins” the divorce.

MYTH: If you move out of the marital residence, you lose your rights to it.

FACT:

Moving out of the marital residence does not automatically affect ownership rights in a divorce.

People are often afraid to leave the marital home because they believe doing so means forfeiting their interest in the property. That is incorrect. Ownership and equitable distribution rights are determined separately from who is physically residing in the home during the divorce.

However, decisions regarding the marital residence can have practical and financial consequences depending on the circumstances. Before making any major decisions about moving out, it is important to speak with an attorney about how it may impact your specific situation.

Every divorce case is unique, and the outcome depends heavily on the facts involved. Understanding the law, rather than relying on common misconceptions, is one of the best ways to protect yourself throughout the process. If you are considering divorce or have questions about your rights under New York law, speaking with an experienced matrimonial attorney can help you better understand your options.