The Basics of Getting a Divorce in New York State

This article is intended for someone looking for basic information on a New York divorce. The following is meant to be a basic guide to the terms and procedure and is not meant to be legal advice. If you have questions about divorce, you should consult an attorney in your area for legal advice.

Divorce is more complicated in New York than in most other states. Almost any week you can open up the newspaper to read of celebrities getting a California or Nevada divorce based on "irreconcilable differences." This is a "no fault" or "non-fault" divorce, where the parties are not claiming anyone did anything wrong, but that they can't remain married due to irresolvable issues. New York, on the other hand, requires fault on behalf of one of the spouses before a New York divorce will be granted. The complaint must allege one of five specific wrongs done by one party against another, as required by New York's Domestic Relations Law.

The most common ground for a divorce is "Cruel and Inhuman Treatment." This sounds very severe, but the phrase is defined so broadly by the courts that it has become almost as default as "irreconcilable differences" has in other states. In other words, it is so broadly defined that any couple wanting a divorce in New York can likely qualify. Specific instances of bad conduct will need to be cited to show it is "unsafe or improper" for the parties to remain married. However, causing arguments, name-calling, refusing intimate contact and many other signs of a failing marriage can qualify as cruel and inhuman treatment.

Many times, the other allegations may be the actual reason a party wants a divorce, but instead cruel and inhuman treatment will be alleged because of specific requirements necessary for the other four allegations. For example, adultery is one of the five grounds for a New York divorce. To plead and prove adultery, a plaintiff must obtain the testimony of someone other than a spouse. The "other man" or "other woman" isn't required to testify, as they have a Fifth Amendment right against self-incrimination and adultery (and sodomy, which is relevant in some cases) are still punishable as crimes. As well, adultery isn't grounds for a New York divorce if you've also had sex with someone other than your spouse or if you knew of the adultery and forgave your spouse and resumed marital relations.

Abandonment is the third ground for a New York divorce. This occurs when your spouse has left, without provocation (ie, you didn't tell her to get out, lock him out after a fight, etc) and without your consent and, despite your request to return, has been gone at least a year. Constructive abandonment is a subset of this ground, where a party has refused to have sex with his or her spouse, without any valid reason, for a year. One of the difficulties with this is the timeline required. Within that year, there can't have been one instance of reconciliation or the clock starts running again. Rather than potentially detailing moment by moment transactions, it can be easier to allege months or weeks of absence as inhuman treatment.

The last of the direct allegations of fault against your spouse is imprisonment. If, after you were married, your spouse has gone to jail for three straight years, you can ask for a divorce. However, there is a time limit and if you wait too long, even if your spouse is still in prison, you may not be eligible for a divorce in New York.

The indirect allegation, if it can be called that, is that spouses may request a divorce based on a separation agreement. A separation agreement has many of the same grounds as a divorce, including that the parties cannot reconcile while living under a decree of separation. After a year of living apart, though, the spouses can ask the court to convert the details of the separation agreement into a divorce (often called a conversion divorce.) This is useful where parties wish to have a trial separation before a divorce or, for whatever reason, need more time before a divorce is granted. The parties will resolve their issues by negotiation or other means, then commit the agreement to writing where it is approved by the court.

Procedurally, there are two main types of divorce proceedings in New York. A "contested divorce" is where your spouse fights back. He or she may still want a divorce, but claim it is your fault. The finding of fault can have repercussions in alimony (property called "maintenance" in New York) and sometimes in child custody. In other cases, your spouse may deny the wrongdoing and fight back to remain married, or at least to deny the claims. Contested divorces are noted for being very expensive and occasionally requiring grueling testimony from the parties. In an "uncontested divorce", the same five grounds are still the basis for a split, but the issues are not disputed. It may be as simple as a spouse has moved on to a new partner and agrees the marriage should be terminated. In most cases, however, the uncontested divorce in New York is still a collaborative process. The parties, often through lawyers, will resolve the major issues such as division of the couple's property and custody of any children. One party will then ask the court for a divorce, asking for exactly the resolution already agreed to in advance. The other spouse will then not respond to the court documents, so that the party who asked for the divorce is awarded a default judgment. The result is that a cooperative resolution is reached without intensive or time-consuming litigation. This means that it is used even in cases where the parties may not get along or where the relationship has crumbled to the point the spouses can't be in the same room.

Once you have read this and understand the terms, you should consult a local attorney to determine whether you have the grounds for divorce and for an explanation of costs and the time it will take. For people who want a divorce without using a lawyer, there are numerous self-help guides that provide excellent information on the necessary steps. In either case, your local Supreme Court clerk will have a copy of the necessary forms and the instructions, available for purchase for a small fee. As well, the forms are available on the official New York State Office of Court Administration website, www.nycourts.gov. Review the forms and see what information you will need before you meet with your lawyer or begin the process.

While it would be great if no one needed the above information, I hope this brief article on divorce in New York has been useful. As always, the above information on divorce in New York is intended solely for educational purposes. This is general information and the laws may have changed between the writing of this article and the time you've read it. As well, oversimplification for space purposes means you will need to consult an attorney or at least a current self-help guide before taking any actions. Divorce, especially under New York law, is very complex and proper care must be taken to safeguard your interests.