FAMILY LAW

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To obtain a divorce in New York State, there are two basic pre-requisites that you must satisfy before you can file.  First, you must satisfy New York’s residency requirements.  Secondly, you must satisfy a grounds for divorce identified and allowable under New York’s Domestic relations Law. 

 

Residency Requirements

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In order to satisfy New York’s residency requirements, you must one or more of the following conditions. 

• One spouse must have lived in New York for at least two years prior to the date the divorce action is started; or

• One spouse must have been living in New York on the date the divorce action is started, as well as one year prior to the start date, and either the marriage ceremony was performed in New York or you and your spouse lived in New York as married persons; or

• One spouse must have been living in New York State for a continuous one year period immediately before the start of the divorce action and the grounds for the divorce occurred within New York state; or

• Both spouses are residents of New York on the date the divorce action starts and the grounds for divorce occurred within New York State. 

 

With regards to the grounds for divorce, there are several grounds for divorce, there are seven statutorily prescribed grounds.  They are all located in Domestic Relations Law Section 170, and can include the following:

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No Fault Divorce Grounds

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• NO FAULT DIVORCE - Irretrievable breakdown in the relationship for a period of at least six months

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Contested Divorce Grounds

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• Cruel and inhuman treatment – Must rise to the level that endangers the physical or mental well being of the Plaintiff, making it unsafe for Plaintiff to cohabitate with Defendant.    

• Abandonment – Abandonment must be for one year or more prior to the start of the divorce proceeding.  This could be a physical abandonment, a denial of access to a residence, or a constructive abandonment, such as a denial of physical intimacy. 

• Imprisonment – the imprisonment must commence after the marriage date, and continue for three years. 

• Adultery

• Living separate and apart pursuant to a judgement or decree – The parties must satisfy the terms of a judgement of separation for more than one year after the judgement was granted.

• Living separate and apart pursuant to a separation agreement – the parties must live apart for more than one year In accordance wit the terms of a properly executed separation agreement .

 

In order for a on fault divorce to be effectuated, there are two requirements:

• One of the parties has sworn under oath that the relationship has broken down irretrievably for a period of at least 6 months, and

• You and your spouse have either resolved all economic issues related to distribution of property, maintenance, child support, counsel and experts fees and expenses, and custody and visitation has been agreed to; or

• The court has decided each issue and incorporated it into a final judgement of divorce. 

 

Any divorce that is not a no fault divorce is generally considered a contested divorce.  This is by no means an exhaustive list or analysis of each and every grounds for contested or no fault divorce.  There are nuances and factual differences between cases which can make one or more arguments or approaches more or less effective, and which may trigger exceptions to these general principals.  The timing of commencement and the events or occurrences upon which each approach or argument is based can also be a determinative factor in the efficacy of each argument or approach.  If you are considering a divorce, speaking to an attorney is an advisable step to take to protect yourself, your children, and your future.  Schedule an initial consult today, or call us today to speak to an attorney.