Before filing for a divorce in New York, you must meet the residency requirement as outlined in New York’s Domestic Relations Law, and you must have a legally acceptable reason, or “ground,” for the divorce.
Domestic Relations Law § 230 outlines the residency requirement that parties seeking a divorce must meet to legally pursue a divorce in New York. There are a few ways parties can meet the residency requirement:
- Either you or your spouse have been living in New York State continuously for at least two years before the divorce case is started;
- Either you or your spouse have been living in New York State continuously for at least one year before the divorce case is started and
- you got married in New York State, or
- you lived in New York State as a married couple, or
- the grounds for your divorce happened in New York State;
- Both you and your spouse are residents of New York State on the day the divorce is started and the grounds for your divorce happened in New York State.
Once the residency requirement is met, parties seeking a divorce musthave a “ground” for divorce found in Domestic Relations Law § 170. There are seven grounds for a divorce accepted by the courts in New York State:
- Irretrievable breakdown in relationship for a period of at least 6 months: Commonly referred to as “no-fault divorce,” New York recently amended the law to include this ground. To use this ground, the marriage must be over for at least 6 months, and the parties have settled all economic issues, including debt accumulated during the marriage, division of marital property, and custody and support of the children.
- Cruel and inhuman treatment: To use this ground, a party must prove to a judge that specific acts of cruelty occurred in the last five years. Arguments or simply not getting along does not meet the burden of proof necessary because the cruelty must rise to the level of physical or mental danger and continuing to live with the offending spouse would be unsafe or improper.
- Abandonment: To use this ground, the spouse must have “abandoned” the party seeking a divorce for at least one year. Abandonment is legally defined as actual, such as where the spouse physically leaves the home without any intention of returning, or constructive, where the spouse refuses to have sex for an extended period of time.
- Imprisonment: To use this ground, the spouse must have been in prison for 3 or more years in a row after the marriage began. This ground is available while the spouse is in prison or up to 5 years after the spouse was released from prison.
- Adultery: To use this ground, a spouse seeking a divorce must prove that his/her spouse committed adultery during the marriage by producing evidence from someone besides the two spouses. For obvious reasons, this ground is hard to prove.
- Divorce after a legal separation agreement: To use this ground, the spouses must have signed and filed a valid separation agreement and live apart for one year. A judge must determine that the separation agreement meets specific requirements in order to be judged valid.
- Divorce after a judgment of separation: To use this ground, the N.Y. Supreme Court would draw up a judgment of separation and the married couple live apart for one year. This ground is not used very often, as many couples agree to a legal separation agreement and do not rely on a judicial decree of separation.
*Gene Berardelli may be contacted at: GeneBerardelli@ipglegal.com.
Gene is a New York street-smart attorney with an extreme passion for success. Gene specializes in litigation, arbitration and general corporate law for New York-based and international clients. He, also, is the host of a popular New York talk radio program.
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