Getting a divorce in New York is not a slam dunk. Two things are required: Residency and legally acceptable reasons or grounds for the divorce.
Residency
To file for a divorce in New York, you and/or your spouse must meet at least one of these residency requirements:
- You or your spouse must have lived in New York for at least two years prior to filing for divorce.
- You or your spouse must have lived in New York for at least one year prior to filing for divorce, and you were married in New York or have lived in New York as a married couple.
- You or your spouse have been living in New York for at least one year prior to filing for divorce, and the legal reason for your divorce (known as the grounds for divorce) must have taken place in New York.
- Both you and your spouse were residents of New York on the day of your divorce filing, and the grounds for the divorce took place in New York.
Most divorce filings fall under requirement (a) above, but when another requirement is the basis for filing in New York, the Court is likely to examine the facts that form the basis for the filing since the Court is empowered to dismiss a case for lack of jurisdiction even if neither party has asked for the dismissal.
Grounds for Divorce
Assuming the residency requirements are met, the divorce must be based on one of seven grounds permitted in New York:
- Irretrievable breakdown in the relationship for a period of at least 6 months. This ground is usually called a no-fault divorce. It requires that the marriage be over for at least 6 months, and all economic issues, including debt, how the marital property will be divided, and custody and support of the children have been settled.
- Cruel and inhuman treatment. The Judge will be looking for specific acts of cruelty that happened in the last five years. It is not enough that you and your spouse had arguments or did not get along. The cruelty must rise to the level that the Defendant put the Plaintiff into physical or mental danger, and it is unsafe or improper for the Plaintiff to continue living with the Defendant.
- Abandonment. The Defendant must have abandoned the Plaintiff for at least one year or more. Two typical examples of abandonment are where the spouse physically leaves the home without any intention of returning or where the spouse refuses to have sex with the other spouse, which is called “constructive” abandonment.
- Imprisonment. The ground applies if the Defendant was put into prison after the marriage began and was in prison for 3 or more years in a row. The Plaintiff can use this ground while the spouse is in prison or up to 5 years after the spouse was released from prison.
- Adultery. The Plaintiff must show that the Defendant committed adultery during the marriage. This ground can be hard to prove because evidence from someone besides the Plaintiff and Defendant is needed.
- Divorce after a legal separation agreement. The Plaintiff and Defendant are required to sign and file a valid separation agreement and live apart for one year. The separation agreement must meet specific requirements to be valid.
- Divorce after a judgment of separation. This ground is not used very often. It applies where the Supreme Court draws up a judgment of separation and the married couple live apart for one year.
If you and/or your spouse have not lived in New York for the past two years, you must let your attorney know. Otherwise, you could be wasting time and money seeking a divorce in New York. In addition, talk with your attorney about the grounds for your divorce and which option is the best in your situation.
If you are considering divorce, contact us to discuss how we can help you resolve you matter.
