THE BASICS
There are two requirements that must be met before you can file for a divorce in New York State.
1. You must satisfy the residency requirements as set forth in Domestic Relations Law Section 230. The Domestic Relations Law is the law that governs divorces in New York State.
2. You must satisfy one of the grounds for divorce set forth in Domestic Relations Law Section 170.
RESIDENCY
To file for a divorce in New York you must satisfy one of the following residency requirements:
1) The marriage ceremony was performed in New York State and either spouse is a resident of the state at the time of the commencement of the action for divorce and resided in the state for a continuous period of one year immediately before the action began; OR
2) The couple lived as husband and wife in New York State and either spouse is a resident of the state at the time of the commencement of the action for divorce and resided in this state for a continuous period of one year immediately before the action began; OR
3) The grounds for divorce occurred in New York State and either spouse is a resident of the state at the time of the commencement of the action for divorce and resided in this state for a continuous period of one year immediately before the action began; OR
4) The grounds for divorce occurred in New York State and both spouses are New York residents at the time the action is commenced; OR
5) If you and your spouse were married outside of New York State and you never lived together as husband and wife in this state and the grounds for divorce did not occur in this state — either you or your spouse must presently be a resident of New York State and have resided continuously in the state for at least two years prior to bringing this action for divorce.
GROUNDS FOR DIVORCE
In order to file for a divorce in New York State you must have a ground (a legally acceptable reason) for the granting of a divorce by the New York courts. The legally acceptable reasons, or grounds for divorce, in New York are described in Domestic Relations Law ยง170. They are: (1) cruel and inhuman treatment; (2) abandonment; (3) imprisonment; (4) adultery; (5) living separate and apart pursuant to a separation judgment or decree; and (6) living separate and apart pursuant to a separation agreement.
DEFINITION OF PLAINTIFF AND DEFENDANT
Where you are the person seeking the divorce, you are the Plaintiff and your spouse is called the Defendant.
CRUEL AND INHUMAN TREATMENT
The treatment of the Plaintiff by the Defendant must rise to the level that the physical or mental well being of the Plaintiff is endangered and making it unsafe or improper for the Plaintiff to continue living with the Defendant.
You cannot obtain a divorce simply because you do not get along with your spouse (“irreconcilable differences”) or because you have arguments or because of an isolated act in an otherwise long and peaceful marriage.
All acts must have happened within five (5) years of the date the summons is filed with the County Clerk.
In describing the specific acts of cruelty, you must be clear and to the point. You must supply the court with details like dates and places. If you do not remember the exact date, use the words “on or about”.
After describing the acts of cruelty you should conclude with the following language: “The conduct of the Defendant was cruel and inhuman and so endangered the physical or mental well being of the Plaintiff as to render it unsafe or improper for the Plaintiff to cohabit with the Defendant.”
ABANDONMENT
An action for divorce may be maintained where the Defendant abandons the Plaintiff for a period of one year or longer prior to commencing the action and continuing to the present.
Abandonment may take the form of your spouse physically departing your marital home without any intention of returning for a period of one year or longer prior to commencing the action, and continuing to the present, without any good reason for doing so and without your consent.
Another form of abandonment is called constructive abandonment, which involves one spouse’s refusal to engage in sexual relations with the other spouse continuously for one year or longer prior to commencing the action, and continuing to the present, without consent, good cause or justification.
Another form of abandonment is called a lock out, which involves one spouse’s refusal to allow the other spouse into the home continuously for more than one year prior to commencing the action and continuing to the present.
IMPRISONMENT
An action for divorce may be maintained where the Defendant is imprisoned for a period of at least three consecutive years. The imprisonment must have commenced after the date of the marriage and the Defendant must still be in prison when this divorce action is commenced. There is a five (5)-year time limit to start the action, beginning from the time of the completion of the third year of imprisonment.
ADULTERY
An action for divorce may be maintained based on adultery, which is an act of sexual or deviate sexual intercourse voluntarily performed by the Defendant with a person other than his or her spouse during the course of the marriage.
The ground of adultery can be difficult and expensive to prove because the testimony of the Plaintiff is not enough and other evidentiary requirements must be satisfied (the Defendant’s admission is not enough). You should keep in mind that acts of adultery may qualify as acts of cruelty and entitle you to maintain a divorce action on the grounds of cruel and inhuman treatment.
CONVERSION OF A JUDGMENT OF SEPARATION
This ground is not used often. It involves a judgment of separation signed by a Judge or Referee of the Supreme Court.
To maintain a divorce action the parties are required to live separate and apart. They must satisfy the terms of the judgment of separation for more than one year after the judgment was granted.
CONVERSION OF A SEPARATION AGREEMENT
A separation agreement is an agreement between the spouses that sets forth the terms and conditions by which the parties will live apart. The agreement must be signed by the parties before a notary and filed with the County Clerk in the county where one of the parties resides.
If you and your spouse have lived apart for more than one year according to the terms and conditions of a properly executed separation agreement, you may maintain an action for divorce. It may be advisable to consult an attorney regarding this ground for divorce.
The above information is an excerpt from an article entitled What You Need To Know Before Starting Your Divorce Action by the New York State Unified Courts System. The full article can be found here.