Divorce

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.

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.

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).

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.

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.

"No-Fault"
The marriage has "broken down irretrievably" for a period of at least six months, provided
that one party has so stated under oath. Please visit our No-Fault Divorce page for more
information.

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 our 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 (6)
living separate and apart pursuant to a separation agreement
(7) irretrievable breakdown in marriage ("no-fault").

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.

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.

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