Grounds For Divorce in New York
New York now has No Fault Divorce. This basis for divorce was added to the Domestic Relations Law in mid October 2010. For all divorce actions commenced after the mid October effective date, a sworn allegation by one spouse that the marriage has been irretrievable broken down for a period of six months is sufficient to support an action for divorce.
New York still allows a divorce if the parties live separate and apart for one year pursuant to a properly prepared Separation Agreement or if one party proves fault on the part of the other party. These grounds for a divorce must be utilized in any action for divorce that was commenced prior to mid October 2010.
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If you are pursuing an uncontested divorce, you now have several options:
- You may execute an Opting Out/Settlement/Separation Agreement and then file for divorce under the no fault statute;
- You can still wait one year to obtain a divorce by living separate and apart pursuant to a written Separation Agreement;
- You may execute an Opting Out/Settlement/Separation Agreement and still pursue a divorce based on fault grounds.
No Fault Process
To obtain a divorce by using No Fault grounds, you must still first have an Agreement. That Agreement may be called a Separation Agreement, a Settlement Agreement, or an Opting Out Agreement. The reasons for the specific title are not really an issue in the Uncontested Process. The No Fault law has changed only the basis for the divorce, not the paperwork required to obtain the divorce.
A Judgment of Divorce must incorporate either an Agreement, an in Court Oral Stipulation, or a Judge’s Decision outlining all of the issues that apply in your case, which may include property distribution, custody, child support, and spousal maintenance. If you do not want to go to Court to finalize your divorce, you must have an Agreement. Even if you have no joint assets, no joint debt, and no children, you must still have an Agreement that outlines those facts for the Court.
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. It is permissable to use fault grounds when obtaining an uncontested divorce. If you wish to do so, you will need to provide us with that information when filling out your forms.
When discussing with your spouse whether 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:
- 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.
- 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.
- 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.
- 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.
- 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.