Grounds For Divorce in New York

New York allows a divorce if one party proves fault on the part of the other party or if the parties live separate and apart for one year pursuant to a properly prepared Separation Agreement. If you are pursuing an uncontested divorce, you have two options. You may execute your separation agreement and then wait one year to obtain a divorce that does not mention fault grounds. If you do not want to wait, you may execute your separation agreement and then one spouse can agree to "default" or not respond to divorce papers alleging fault grounds. For some individuals, the one year wait is not acceptable and they choose to use fault grounds. For other individuals, listing fault grounds in the divorce papers is not acceptable and they choose to wait the one year. The papers that have to be filed, the filing fees, and the legal work are basically the same whichever method you use.

Fault Grounds

The fault grounds for divorce in New York are abandonment, cruel and inhuman treatment, adultery, or confinement in a prison for a period of three or more years after marriage. When you fill out our uncontested divorce forms, we will require that you list one of these fault grounds if you will be obtaining an uncontested divorce immediately instead of waiting for one year after you sign your separation agreement. If you are unsure of what fault grounds apply or can be used, we will discuss that issue with you after obtaining the facts that are specific to your case.

When discussing with your spouse what fault grounds will be contained in your papers, keep in mind that to successfully complete an uncontested divorce, you will want to minimize any level of unnecessary antagonism. Fault grounds for divorce based upon cruel and inhuman treatment provide an opportunity to dredge up and churn all of the emotional issues that led to the dissolution of your marriage. Doing that can turn a potentially peaceable settlement into a divorce litigation. You may want to consider whether less emotional grounds for divorce, such as abandonment or sexual abandonment, would be appropriate for your case.

Residency

New York has specific residency requirements that must be met if you wish to file for divorce in a New York State Court. Those requirements are:

1. If you and your spouse were married in the State of New York and one of you resides in the State when the Divorce action is commenced and that person resided in New York continuously for one year before the action was commenced.

2. If you and your spouse lived in New York State as Husband and Wife, at any time during your marriage, and one of you currently resides in the State and has lived in New York continuously for one year when the Divorce action is commenced.

3. If the fault grounds for Divorce occurred in New York State and either party is a resident of New York State for a continuous period of at least one-year before the divorce action is commenced. This residency requirement will allow a New York Court to hear a Divorce case even if the parties did not live together as Husband and Wife in New York State.

4. If the fault grounds for Divorce occurred in New York State and both parties are residents of New York at the time that the action for Divorce is commenced. This residency requirement will allow a New York Court to hear a Divorce case even if neither party has resided in New York for any set period of time.

5. If either party has been a resident of New York State for a continuous period of two years prior to the commencement of the action for Divorce. This residency requirement will allow any party who has lived in New York State without their spouse to obtain a Divorce in New York State. If, for example, one spouse has resided continuously in another state or abroad, the spouse who has resided in New York for two years can seek the protections of the New York Courts.