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Divorce Basics 2017-09-29T21:21:03+00:00

Within any divorce, issues that must be considered in such an action are as follows, yet some may not apply:

  • Custody of children;
  • Support of children;
  • Visitation of children;
  • Division of assets;
  • Maintenance (support for the spouse, formerly known as “alimony”);
  • Division of debt;
  • and other issues

No-fault grounds

The appropriate ground for you to file may be based on what you and your spouse agree on and can verify, or what the filing spouse wishes to prove to the court. New York recognizes both fault and no-fault grounds for divorce.

As of October 12, 2010 New York is now a “no-fault” divorce law state. This means you can get a “no-fault” divorce if, according to either party, the marriage has “broken down irretrievably” for a period of at least six months.

The appropriate ground for you to file may be based on what you and your spouse agree on and can verify, or what the filing spouse wishes to prove to the court. New York recognizes both fault and no-fault grounds for divorce.

Fault grounds

Fault grounds for divorce simply means that one spouse is at fault for the divorce. The basis for a fault ground divorce in New York are as follows:

  • The cruel and inhumane treatment by one spouse against the other, endangering his or her physical or mental well being
  • The abandonment of a spouse for a period of one or more years
  • The confinement of a spouse in prison for at least three consecutive years after the marriage
  • The act of adultery

It is important for you to know that if you wish to base your divorce on fault-based grounds, you will need to provide private information about your relationship to the court. This can often be embarrassing and may make your divorce process more emotional. On the other hand, a fault-based divorce may sometimes entitle the spouse who was not at fault to receive child custody or spousal support.

To file for a divorce, you must go to the New York State Supreme Court in your county. All divorces in New York State are handled in the county Supreme Courts. Family Court can order support or custody, but cannot grant a divorce. New York has laws that limit how you can get a divorce. There are seven grounds (reasons) you can use to get a divorce in New York. The divorce judgment will include orders about marital property and marital debts, as well as custody, visitation, spousal support, and child support.

1. Irretrievable Breakdown: The relationship between you and your spouse has broken down irretrievably for at least six months. If you filed before October 12, 2010, you cannot use this new reason. The court cannot give you a divorce on these grounds until after property, custody, visitation, spousal support, and child support have been settled or decided.

2. Cruel and inhuman treatment: “Cruel and inhuman treatment” by your spouse. This means that your physical or mental health is in danger if you continue living together. However, if the abusive treatment happened more than 5 years ago, you cannot divorce for this reason if your spouse objects.

3. Abandonment: Your spouse “abandons” you for at least a year. This means that your spouse has left you, or kicked you out, and does not intend to return.

4. Imprisonment: If your spouse goes to jail for three or more years. However, if your spouse was released more than 5 years ago, you cannot divorce for this reason.

5. Adultery: Your spouse commits adultery. However, this is not a reason for divorce if you do any of the following: encourage your spouse to commit adultery, forgive your spouse by having sexual relations with them after you discover the adultery, or commit adultery yourself. You also cannot divorce because of adultery if it has been more than 5 years since you discovered the adultery. You cannot testify yourself to prove adultery, so you must have a witness who can testify.

6. Judgment of Separation: You and your spouse have not lived together because of a “Decree of Separation” or “Judgment of Separation,” given by the Court, for at least one year. You must obey all the conditions of the decree or judgment. It is unusual to have a Judgment of Separation because it requires similar proof to that needed for a divorce. Most people skip the Judgment and go directly to divorce.

7. Separation Agreement: You and your spouse have not lived together because of a written “Agreement of Separation” for at least one year. Both you and your spouse must sign this agreement before a notary. You must obey all the conditions of the agreement.

The person who starts the divorce is called the plaintiff. The other spouse is called the defendant.

Residency requirements give a New York court the power to hear your divorce case. A New York court can only decide a divorce case if one of the following requirements are met under Domestic Relations Laws – Article 13 – Sections: 230 and 231:

  1. The parties were married in the state and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or
  2. The parties have resided in this state as husband and wife and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or
  3. The cause occurred in the state and either party has been a resident thereof for a continuous period of at least one year immediately preceding the commencement of the action, or
  4. The cause occurred in the state and both parties are residents thereof at the time of the commencement of the action, or
  5. Either party has been a resident of the state for a continuous period of at least two years immediately preceding the commencement of the action. Furthermore, Section 231 explains that if you live in New York when the lawsuit begins, you are considered a resident even though your spouse may live elsewhere.

In general, there are two different kinds of divorces in New York: contested and uncontested. When the parties cannot agree on issues either about the divorce or issues surrounding the divorce, like maintenance (formerly known as “alimony”), child support or property division, then the divorce is referred to as a contested divorce.

In contrast, an uncontested divorce is when the spouses agree on everything and don’t need to get the court involved to make decisions on those issues. From this point either the parties or the spouse filing for divorce can determine what ground to file your divorce on.

A divorce in New York must be handled by the Supreme Court of the State of New York. A Supreme Court judge is the only person who can legally grant a divorce. You can file a divorce in the county where you and your spouse currently reside. To find the Supreme Court in the county where you or your live, click here.

If you require assistance with other types of family law matters, such as those listed below, you can go to your local Family Court. You can find your local family court listed here.

  • child support;
  • child custody;
  • child visitation;
  • spousal support (also known as spousal maintenance); or
  • paternity