Divorce

DIVORCE REQUIREMENTS IN NEW YORK
There are two basic requirements that must be satisfied before a divorce action can be
filed in New York State, the "residency" requirements as set forth in New York Domestic
Relations Law Section 230; and one of the "grounds" for divorce set forth in New York
Domestic Relations Law Section 170.

(2) Abandonment
An action for divorce may be maintained where the Defendant abandons the Plaintiff for
a period of one year or longer prior to commencing the action and continuing to the
present. Abandonment may take the form of the defendant physically leaving the marital
home without any intention of returning for a period of one year or longer prior to
commencing the action, and continuing to the present, without any good reason for doing
so and without the Plaintiff’s consent. Another form of abandonment is called
constructive abandonment, which involves one spouse's refusal to engage in sexual
relations with the other spouse continuously for one year or longer prior to commencing
the action, and continuing to the present, without consent, good cause or justification.
Another form of abandonment is called a lock out, which involves one spouse's refusal to
allow the other spouse into the home continuously for more than one year prior to
commencing the action and continuing to the present.

(3) Imprisonment
An action for divorce may be maintained where the Defendant is imprisoned for a period
of at least three consecutive years. The imprisonment must have commenced after the
date of the marriage and the Defendant must still be in prison when the divorce action is
commenced. There is a five (5)-year time limit to start the action, beginning from the
time of the completion of the third year of imprisonment.

(4) Adultery
An action for divorce may be maintained based on adultery, which is an act of sexual or
deviate sexual intercourse voluntarily performed by the Defendant with a person other
than his or her spouse during the course of the marriage. The ground of adultery can be
difficult and expensive to prove because the testimony of the Plaintiff is not enough and
other evidentiary requirements must be satisfied (the Defendant's admission is not
enough).

(5) Conversion of a Separation Agreement
A separation agreement is an agreement between the spouses that sets forth the terms
and conditions by which the parties will live apart. The agreement must be signed by the
parties before a notary and filed with the County Clerk in the county where one of the
parties resides.
If the parties have lived apart for more than one year according to the terms and
conditions of a properly executed separation agreement, either party may maintain an
action for divorce.

(6) Conversion of a Judgment of Separation
This ground involves a judgment of separation signed by a Judge or Referee of the
Supreme Court. To maintain a divorce action the parties are required to live separate and
apart. They must satisfy the terms of the judgment of separation for more than one year
after the judgment was granted.

UNCONTESTED DIVORCE IN NEW YORK
A divorce is uncontested when both spouses reach an agreement with respect to financial
and divorce-related issues (i.e., child custody and support, division of marital property or
spousal support); and both spouses either agree to the divorce, or the defendant fails to
"appear," or participate, in the divorce action. A party often brings a divorce action, that
he or she believes will be uncontested, but later learns that the other spouse contests the
case.

Please visit the Uncontested Divorce page for more information.

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GROUNDS FOR DIVORCE IN NEW YORK
In order to file for a divorce in New York, the party bringing the action,
the plaintiff, must have grounds (a legally acceptable reason) for the
granting of a divorce by New York courts. The grounds for divorce in New
York, which can be found in Domestic Relations Law §170, are:
(1) cruel and inhuman treatment; (2) abandonment; (3) imprisonment; (4)
adultery; (5) living separate and apart pursuant to a separation judgment
or decree; and (6) living separate and apart pursuant to a separation
agreement.

(1) Cruel and Inhuman Treatment
The treatment of the Plaintiff by the Defendant must rise to the level that
the physical or mental well being of the Plaintiff is endangered thereby
making it unsafe or improper for the Plaintiff to continue living with the
Defendant. Plaintiff’s cannot obtain a divorce simply because they do not
get along with their spouse ("irreconcilable differences"), or because they
have arguments, or because of an isolated act in an otherwise long and
peaceful marriage. All acts must have happened within five (5) years of
the date the divorce action is commenced.