DIVORCE

If you are perusing our website, you are likely interested in divorce in New York, as our firm handles New York divorces.

Divorce is state specific.

To file for divorce in New York State, you or your spouse must meet one of the following residency requirements:

  • You or your spouse have lived in New York State for at least two years before filing for divorce.
  • You or your spouse have lived in New York State for at least one year before filing for divorce and:
    • You got married in New York State.
    • You lived in New York State as a married couple.
    • 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.

There are seven grounds (legally acceptable reasons) for a divorce in New York State:

  1. Irretrievable breakdown in relationship for a period of at least 6 months – DRL §170(7)
    This ground is usually called a no-fault divorce. To use this ground, the marriage must be over for at least 6 months. The term irreconcilable differences is often used. Essentially, irreconcilable differences speak to the partners’ incompatibility. One or both partners have checked out of the marriage and simply cannot continue living with each other.
  2. Cruel and inhuman treatment
    To use this ground, specific acts of cruelty must have happened in the last five years. It is not enough that you and your spouse had arguments or did not get along. The acts of cruelty must rise to the level that the Plaintiff is physically or mentally in danger and it is unsafe or improper for the Plaintiff to continue living with the Defendant.
  3. Abandonment
    To use this ground, the spouse must have abandoned the Plaintiff for at least one year or more. Two examples of abandonment: where the spouse physically leaves the home without any intention of returning or where the spouse refuses to have sex with the Plaintiff, this is called “constructive” abandonment.
  4. Imprisonment
    To use this ground, the spouse must have been in prison for 3 or more years in a row. The spouse must have been put into prison after the marriage began. The Plaintiff can use this ground while the spouse is in prison or up to 5 years after the spouse was released from prison.
  5. Adultery
    To use this ground, the Plaintiff must show that the spouse committed adultery during the marriage. This ground can be hard to prove because evidence from someone besides the Plaintiff and spouse is needed.
  6. Divorce after a legal separation agreement
    To use this ground, the Plaintiff and Defendant sign and file a valid Separation Agreement and live apart for one year. The Separation Agreement must meet specific legal requirements to be valid.
  7. Divorce after a judgment of separation
    This ground is not used very often and is sometimes called a conversion. To use this ground, the Supreme Court draws up a Judgment of Separation and the married couple live apart for one year.

Notably, nearly all divorces are filed as no-fault divorces under Irretrievable breakdown in relationship for a period of at least 6 months – DRL §170(7)
You can also look here for more information and resources on this topic directly from the New York courts:  https://www.nycourts.gov/courthelp/family/divorceRequirements.shtml

Contested Divorce vs. Uncontested Divorce:

Divorces can be either contested or uncontested.

Contested divorces necessarily involve litigation in the courts. A judge is needed to render decisions and orders that bind the parties. To learn more about contested divorces and divorce litigation, please visit our “Divorce Litigation” page.

Uncontested divorces are divorces where the parties resolve all issues between themselves and then submit divorce paperwork requesting the judge to sign off on their agreed upon divorce terms. This can be done via affidavit submissions to the court in the simplest of cases or the parties may enter into a written agreement, such as a Separation Agreement or Divorce Agreement, where they’ve specified their respective rights and obligations.

FAQS:  

Commonly Asked Questions:

What if I don’t meet the residency requirements to file for divorce?

You will need to wait until you meet the residency requirements to file for divorce. In the interim, you may want to explore filing for support in Family Court until you are able to file for divorce in Supreme Court. Alternatively, while you wait, you can enter into a Separation Agreement with your spouse and be bound by its terms as a contractual agreement. In this instance, you would file the Separation Agreement with the courts as an uncontested divorce filing once you have met the residency requirements to file.

What if my marriage breaks down in less than 6 months and I want to file under no-fault grounds?

You will need to wait the 6 months, because you have to affirm in your divorce affidavits that the marriage has broken down for at least 6 months. It would be prima facie false to state such if the marriage was, say, only 3 months in length, even if you and your spouse mutually agree the marriage is over.

In the interim, you may enter into a written agreement with your spouse as a stopgap measure and delineate such things as a separation date and respective responsibilities and obligations to one another. Speak to your attorney about signing a “Stop-the-Clock Agreement” or a comprehensive all-encompassing Separation Agreement.

If I can forum shop because my spouse and I live in different states, are there advantages to me filing in New York state?

New York is an equitable distribution state as opposed to some other states, such as California, that are community property states. Equitable distribution refers to the way in which the property earned and acquired during the marriage, namely Marital Property, is allocated and distributed between the parties. It is not necessarily a 50/50 division the way community property states are. In New York, there are many factors that are considered when determining the distribution of property.

You would want to discuss these factors with your attorney to see how favorable they are for you.

You would also want to weigh the New York spousal support guidelines against those of the other state, as well as the laws regarding attorney’s fee awards.

When children are involved, there are notable points such as that New York will not rule on custody if the child(ren) have not been residing in New York for 6 or more months.

Child support in New York is obligatory until the child is 21 years-old by statute. That is much older than many other states, where child support is obligatory until the age of 18 (and in some states 19).

Depending on which county in New York State you file the divorce in, you may be in for a very long turn-around on getting your signed Judgment of Divorce. Some of the counties in New York are very overburdened, and the process can, therefore, be very protracted. Try to find out the approximate waiting periods in the county you file in so you can align your expectations accordingly.

How much does a divorce cost?

The cost of divorce is highly variable.

For a simple uncontested divorce with no issues, you may be able to enter into a modest flat fee retainer with your attorney, and this fee will often, but not always, include the court filing fees. The retainer agreement should spell out very specifically if the court fees are included or if you are expected to pay those fees separately as what is labeled a disbursement fee.

For most other cases that will involve negotiation and a written agreement, you will enter into a retainer agreement with your attorney setting forth the hourly rate and the minimum retainer balance that needs to be paid upfront to commence the engagement. Once you enter into the retainer agreement, there is direct privity between you and the attorney. There may be a possibility to request that your spouse pay towards some of your legal fees, but there is no guarantee on this. It is a presumptive and highly discretionary point that you should discuss with your attorney if you are unclear about the law surrounding requesting attorney’s fees as part of your ancillary relief during divorce.