New York Divorce Basics

A divorce in New York is also referred to as a Matrimonial Action. The spouse bringing the action is known as the plaintiff, and the other spouse is known as the defendant.

Residency Requirement:

To file for divorce (or annulment or legal separation) in New York the following requirements must be met:

The couple was married in the state, either spouse is a New York resident when the action is filed, and has been residing in the state for at least one year before filing;

The parties have resided in New York as husband and wife and either party is a New York resident when the action is commenced and has been a resident for at least one year before filing;

The grounds occurred in the state and either party has been a New York resident for at least one year before filing; or

Either party has been a New York resident for at least two years prior to filing the action.

Filing:

A New York State Supreme Court is the only type of court that handles divorce cases and a Supreme Court judge is the only person who can legally grant a divorce. To initiate a divorce action, the Plaintiff, spouse initiating a divorce action, will need to buy an Index Number at the County Clerk’s office and file a Summons with Notice or a Summons and Verified Complaint in the Supreme Court in the county where either spouse lives.

Copies of the paperwork must be served on the Defendant, other spouse, to give notice that the Plaintiff has started a divorce action.

An Index Number is a unique number assigned by the County Clerk’s office to every action or proceeding commenced within the New York State Supreme Court.

Abandonment:

There are special proceedings to dissolve a marriage on the ground of absence if the petitioner is a resident of New York and has been so for one year immediately preceding the commencement of the special proceeding; the matrimonial domicile at the time of the disappearance of the absent spouse was within the state; and the absent spouse has been gone for five successive years without giving any indication to his/her spouse that he/she is still alive.

Spouse’s Name:

In a divorce action, the final judgment shall contain a provision that each party may resume the use of his/her pre-marriage surname or any other former surname.

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Legal Grounds for Divorce

New York was the last state to allow for no-fault divorce grounds. Prior to the new law for no-fault divorce which took effect in October, 2010, the only way to obtain a divorce without proving fault was to first live apart for a year and agree to settlement terms.

The statutory grounds for divorce in New York are now as follows:

1. Cruel and inhumane treatment of one spouse by the other that endangers the physical or mental well being of the spouse, making it unsafe or improper for the spouses to continue living together;

2. Abandonment for a period of one or more years;

3. Confinement of one spouse in prison for a period of three or more consecutive years after the marriage;

4. Adultery;

5. The spouses have lived apart pursuant to a decree or judgment of separation for a period of one or more years after the decree or judgment was granted, and satisfactory proof has been submitted by the plaintiff that he/she has substantially performed all the terms and conditions of the decree or judgment;

6. The spouses have lived apart pursuant to either a written agreement of separation or a memorandum (with specific information), 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/she has substantially performed all the terms and conditions of such agreement, which is filed in the office of the clerk of the county where either spouse lives; or

7. The relationship between the spouses has broken down irretrievably for a period of at least six months.

If a couple wants use to grounds that the marriage is irretrievably broken, one spouse must make this claim under oath. In addition, to receive a divorce decree under these grounds, the couple must reach an agreement regarding distribution of marital property and debt, spousal support, child support, custody and visitation, and payment of related fees and expenses, or the court must make determinations regarding these issues and they must be incorporated into the judgment of divorce.

In order to obtain a divorce under grounds of adultery, the following must be true:

The other spouse did not procure the adultery or connive with the adulterant when the adultery was committed;

The plaintiff has not forgiven the adulterant, which can be shown by the plaintiff voluntarily cohabitating with the adulterant with knowledge of the adultery;

No more than five years have passed since the discovery of the adultery;

The plaintiff has not committed adultery.

Either party has the right to trial by jury on the issues of the grounds for granting the divorce.

Annulment, Declaring a Marriage Void

An annulment establishes that a marriage is not legally valid. The following situations are grounds for annulment.

Bigamy;

One of the spouses was under the age of consent;

One of the spouses is unable to understand the nature, effect and consequences of marriage due to mental incapacity;

Physical incapacity;

Consent to the marriage was the result of force, duress, or fraud; or

After marriage, either spouse becomes incurably insane for at least five years.

In an action to annul a marriage, there is a right to trial by jury of all the issues of fact, unless the action is founded on the grounds of physical incapacity. Proof of any of the alleged grounds must be provided to the court to obtain an annulment.

Property Division

New York is an equitable distribution state. Marital property shall be divided in a fair and equitable fashion. If the spouses cannot reach an agreement on property division and debt and doesn’t have a prenuptial agreement regarding these issues, the court will make the determination.

Ownership of separate property shall remain the same. Marital property will be distributed equitably with consideration of the following criteria:

The income and property of each party at the time of the marriage, and at the time of the commencement of the action;

The duration of the marriage and the age and health of both parties;

The need of a custodial parent to occupy or own the marital residence and to use or own its household effects;

The loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution;

Any award of maintenance;

Any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;

The liquid or non-liquid character of all marital property;

The probable future financial circumstances of each party;

The impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party;

The tax consequence to each party;

The wasteful dissipation of assets by either spouse;

Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; and

Any other factor which the court shall expressly find to be just and proper.

Spousal Support

Spousal support is decided on a case-by-case basis. When determining whether to award spousal support, the court reviews the following factors.

The length of the marriage;

The ability of each spouse to be self-supporting; and

The circumstances of the case and of the respective parties.

Support may be temporary or permanent. When deciding what amount to award and for how long, the court considers the following criteria:

The income and property of the respective parties including marital property distributed pursuant to subdivision five of this part;

The duration of the marriage and the age and health of both parties;

The present and future earning capacity of both parties;

The ability of the requesting spouse to become self-supporting and, if applicable, the period of time and training necessary;

Reduced or lost lifetime earning capacity of the requesting spouse as a result of having given up or delayed education, training, employment, or career opportunities during the marriage;

The presence of children of the marriage in the respective homes of the parties;

The tax consequences to each party

Contributions and services of the requesting spouse as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other spouse;

The wasteful dissipation of marital property by either spouse;

Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; and

Any other factor which the court shall expressly find to be just and proper.

Child Custody and Support