New York Divorce FAQ

Q: What are the grounds for divorce in New York?

A: An action for divorce may be maintained by a husband or wife to procure a judgement divorcing the parties and dissolving the marriage on any of the following grounds:

1. The cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant.

2. The abandonment of the plaintiff by the defendant for a period of one or more years.

3. The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.

4. The commission of an act of adultery, provided that adultery is hereby defined as the commission of an act of sexual intercourse, oral sexual conduct or anal sexual conduct, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of plaintiff and defendant.

5. The husband and wife have lived apart pursuant to a decree or judgement of separation for a period of one or more years aft er the granting of such decree or judgment, and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree or judgement.

6. The husband and wife have lived separate and apart pursuant to a written agreement of separation, subscribed by the parties hereto and acknowledged or proved in the form required to entitle a deed to be recorded, for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such agreement. Such agreement shall be filed in the office of the clerk of the count wherein either party resides. In lieu of filing such agreement, either party to such agreement may file a memorandum of such agreement, which memorandum shall be similarly subscribed and acknowledged or proved as was the agreement of separation and shall contain the following information: (a) the names and addresses of each of the parties, (b) the date of marriage of the parties, (c) the date of the agreement of separation and (d) the date of this subscription and acknowledgment or proof of such agreement of separation. DRL 170 1-6

Q: Where do I go in New York to file a divorce?

A: A matrimonail action is defined by CPLR 105(p) as (1) Separation, (2) Annulment, or (3) Divorce and is heard in the Supreme Court in the county where at least one of the parties resides. CPLR 105(p)

Q: What is the difference between an annulment, a legal separation, and a divorce?

A: An annulment is a court order that nullifies, abolishes, and makes void a marriage and establishes that a marital status never existed.

A legal separation is a court order that arranges the terms (custody, support, etc.) under which a married couple will live separately.

A divorce is a legal separation of man and wife, effected by the judgment or decree of a court that either totally dissolves the marriage relation, or suspends its effects so far as concerns the cohabitation of the parties.

Q: Do I have to live in New York to obtain a New York Divorce?

A: An action to annul a marriage, or to declare the nullity of a void marriage, or for divorce or separation may be maintained only when:

1. The parties were married in the state and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or

2. The parties have resided in this state as husband and wife and either party is a resident thereof when the actions commenced and has been a resident for a continuous period of one year immediately preceding, or

3. The cause occurred in the state and either party has been a resident thereof for a continuous period of at least one year immediately preceding the commencement of the action, or

4. The cause occurred in the state and both parties are residents thereof at the time of the commencement of the action, or

5. Either party has been a resident of the state for a continous period of at least two years immediately preceding the commencement of the action.

If a married person dwells within the state when he or she commences an action against his or her spouse for divorce, annulment or separation, such person is deemed a resident thereof, although his or her spouse resides elsewhere. DLR 230, 231

Q: Do I need an attorney?

A: In all except the simplest divorces, you will need to hire an attorney. Simple divorces generally are defined as those in which the couple has no children, the couple has divided property and assets to their satisfaction, and neither spouse wants any monetary support.

Q: If so, can my spouse and I use the same attorney?

A: No. An attorney cannot ethically represent more than one client in a case where there is the possibility of conflict of interest between those clients.

Q: What are the different professional legal services and options available to my spouse and I if we need legal assistance for our divorce?

A: There are three main legal avenues in which a divorcing couple might proceed: litigation, mediation, or collaboration.

In litigation, attorneys take a leadership role throughout the divorce process, using court procedure, settlements, and trials, while remaining the only medium through which their clients communicate their wishes. The litigation process is emotionally and financially draining, and can be extremely lengthy. It works towards win-lose resolutions which are usually beneficial to only one of the parties. The path itself is conflicted and adversarial and tends to be destructive for the clients, mutual friends, and any children which may be involved.

In mediation, parties work together with a neutral third party, usually a lawyer or mental health professional. This person, acting as a mediator, helps both parties reach a mutual agreement, without giving either party individual legal advice. Both parties may retain personal lawyers for independent consultation. The mediator may or may not process the divorce. If not, the parties can hire a separate attorney to review their agreement, before taking it to court, themselves. This process places less stress on the clients and is not as costly as litigation.

With collaboration, parties retain individual attorneys who agree in advance with the clients, not to use litigation. The backbone of collaborative divorce, this contractual agreement, if broken, will result in termination of the process and withdrawal of the attorneys. In this option, both parties agree to work together with the help of their attorneys to create a resolution that is mutually satisfying and fairly reaches the needs and interests of the clients. Collaboration tends to reduce stress, costs and time delays prevalent in litigation while helping clients achieve the best possible resolution.

Q: What is the difference between a contested and an uncontested divorce?

A: In most cases, divorces are uncontested. In an uncontested divorce, both spouses negotiate and agree on a settlement, which takes into account all aspects of the divorce, including property division, child custody and visitation, support payments and/or alimony. Then together, they present their settlement to the court, where the judge reviews it and grants the divorce. In some cases, however, spouses and their attorneys cannot reach an agreement on either all or part of the divorce. In these instances, the couple must go to a hearing or trial, where the judge makes the final decision. The judge’s decision is resolute regardless of whether it is satisfying to either or both spouses. The contested divorce is always more expensive, as it takes more time and the involvement of a judge to make your divorce decisions.