How to Get a New York Divorce
A New York divorce is different from a divorce in other states. Most states have no-fault divorce. In those states, either spouse can request a divorce without having to prove a reason.
In New York, you must prove that your spouse has acted in a way that makes it unreasonable for you to stay married. The law calls this fault. To get a New York divorce, you must prove one or more of four faults:
- Cruel and inhuman treatment. Your spouse must have caused you mental and/or physical harm.
- Abandonment. If your spouse moves out of the home and lives elsewhere for more than a year or refuses to have sex with you for more than a year, he or she has abandoned the marriage. If you keep your spouse out of the house, then you have abandoned the marriage.
- Imprisonment. If your spouse has been in prison for more than three consecutive years, it is considered grounds for divorce.
- Adultery. Your spouse must have had sex with another person within the last five years, and you must have stopped having sex with your spouse after you found out.
An independent witness or evidence is always needed to prove fault.
New York Divorce after Separation
New York divorce law also provides for divorce after a separation. You may file for divorce without fault if you have lived apart from your spouse for at least a year, following the terms of a written separation contract or a court separation judgment.
Your New York separation contract must cover property distribution, support payments, child custody, visitation, support, and all other items relevant to the separation.
Your agreement must meet all legal requirements, or the court may deny your divorce. For this reason you should consult with a New York divorce attorney before creating or signing a separation agreement.
New York Divorce Residency Requirements
To file for a New York divorce, you or your spouse must meet any of the following state residency requirements.
- You were married in New York, and one of you has lived there for one year prior to the divorce filing
- You and your spouse lived together in New York, and one of you has lived there for one year prior to the divorce filing
- The grounds for divorce-the fault-happened in New York, and one of you has lived there for one year prior to the divorce filing
- One of you has lived in New York for two years prior to the divorce filing
Starting a Divorce
You or your New York divorce attorney will file a form, called an Action for Divorce, with the New York Supreme Court. Your spouse is given notice of the filing and may respond. If you and your spouse agree on all issues, your divorce may be finalized without a trial. If you and your spouse disagree over property, custody, or support issues, you will need to go to court for a hearing.
Your attorney can assist you in getting temporary orders from the court. These orders can provide for child support and custody, spousal support, and financial division during your divorce.
Getting an Uncontested Divorce in New York
A New York divorce may be either contested or uncontested. Contested means that you need the court to solve an issue such as child custody, support payments, or property distribution between you and your spouse.
An uncontested divorce in New York means that you and your spouse agree on all aspects of the divorce. If you are filing for divorce after a separation agreement, you and your spouse likely will have already worked out all the issues. If so, the court may grant you an uncontested divorce, and no trial will be needed.
You also may be able to obtain a divorce without a trial if you can prove fault and your spouse does not disagree or does not respond to your divorce filing.
Do You Need a New York Lawyer?
New York divorce law is complicated. Your divorce filing must be correct and complete. For a fault-based divorce, you must prove your case completely to the court.
If you and your spouse are planning to separate, the agreement must be accurate and complete. If it is not, you may not be able to obtain a divorce after your separation.
Child custody, support, and division of marital property are also complex and important issues.
A New York divorce attorney can make sure that you are treated fairly throughout your divorce.