WHAT IS A DIVORCE?
Divorce is the final, legal ending of a marriage by court order. If you have a divorce case in court, you may hear lawyers and court staff call it a matrimonial action. The person who starts the divorce is called the plaintiff, and the other spouse is called the defendant.
To file a divorce case in New York, the spouses need to meet the criteria of Residency and Grounds for Divorce.
To file for a divorce in New York you must satisfy one of the following residency requirements:
GROUNDS FOR DIVORCE
In order to file for a divorce in New York State you must have a ground (a legally acceptable reason) for the granting of a divorce by the New York courts. The seven legally acceptable reasons, or grounds for divorce, in New York are described in Domestic Relations Law §170. Listed with the most recently enacted no-fault divorce ground first and then following the order listed in the Domestic Relations Law, they are:
DRL §170 (1) cruel and inhuman treatment:
• The treatment of the Plaintiff by the Defendant must rise to the level that the physical or mental well being of the Plaintiff is endangered and making it unsafe or improper for the Plaintiff to continue living with the Defendant.
• You cannot obtain a divorce on this ground simply because you have arguments or because of an isolated act in an otherwise long and peaceful marriage.
• If all or some of the acts occurred more than five years ago and your spouse opposes the divorce, your case may be dismissed.
• In describing the specific acts of cruelty, you must be clear and to the point. You must supply the court with details like dates and places. If you do not remember the exact date, use the words "on or about".
• After describing the acts of cruelty you should conclude with the following language: "The conduct of the Defendant was cruel and inhuman and so endangered the physical or mental well being of the Plaintiff as to render it unsafe or improper for the Plaintiff to cohabit with the Defendant.
DRL §170 (2) abandonment:
• An action for divorce may be maintained where the Defendant abandons the Plaintiff for a period of one year or longer prior to commencing the action and continuing to the present.
• Abandonment may take the form of your spouse physically departing your marital home without any intention of returning for a period of one year or longer prior to commencing the action, and continuing to the present, without any good reason for doing so and without your consent.
• Another form of abandonment is called constructive abandonment, which involves one spouse's refusal to engage in sexual relations with the other spouse continuously for one year or longer prior to commencing the action, and continuing to the present, without consent, good cause or justification and despite your repeated requests.
• Another form of abandonment is called a lock out, which involves one spouse's refusal to allow the other spouse into the home continuously for more than one year prior to commencing the action and continuing to the present.
DRL §170 (3) imprisonment:
An action for divorce may be maintained by Plaintiff only where the Defendant is imprisoned for a period of at least three consecutive years. The imprisonment must have commenced after the date of the marriage. If your spouse was released more than five years ago and your spouse opposes the divorce, your case may be dismissed.
DRL §170 (4) adultery:
• An action for divorce may be maintained based on adultery, which is an act of sexual or deviate sexual intercourse voluntarily performed by the Defendant with a person other than his or her spouse during the course of the marriage.
• The ground of adultery can be difficult and expensive to prove because the testimony of the Plaintiff is not enough and other evidentiary requirements must be satisfied (the Defendant's admission is not enough). A corroborating affidavit of a 3rd party witness or other proof should be attached to the papers you submit to the court. You should keep in mind that acts of adultery may qualify as acts of cruelty and entitle you to maintain a divorce action on the grounds of cruel and inhuman treatment.
• Note: if you found out about the adultery more than five years ago and your spouse opposes the divorce, your case may be dismissed.
DRL §170 (5) living separate and apart pursuant to a separation judgment or decree:
• This ground is not used often. It involves a judgment of separation of the Supreme Court.
• To maintain a divorce action the parties are required to live separate and apart. They must satisfy the terms of the judgment of separation for more than one year after the judgment was granted.
DRL §170 (6) living separate and apart pursuant to a separation agreement:
• A separation agreement is an agreement between the spouses that sets forth the terms and conditions by which the parties will live apart. The agreement must be signed by the parties before a notary and filed with the County Clerk in the county where one of the parties resides.
• If you and your spouse have lived apart for more than one year according to the terms and conditions of a properly executed separation agreement, you may maintain an action for divorce. It may be advisable to consult an attorney regarding this ground for divorce.
DRL §170 (7) irretrievable breakdown in relationship for a period at least six months (commonly known as “no-fault divorce”):
• To get a divorce on this ground, your relationship with the Defendant must have broken down irretrievably (so that it is impossible to repair or reconcile) for a period of at least six months.
• This type of divorce is not automatic even though it is commonly called “no-fault divorce.” The court will not grant you a divorce based on this ground unless and until:
a) one of the parties has sworn under oath that the relationship has broken down irretrievably for a period of at least six months; AND
b) you and your spouse have either resolved all the economic issues of distribution of property, maintenance, child support, and counsel and/or experts’ fees and expenses, and the custody and visitation with the minor children of the marriage OR these issues have been decided by the court and incorporated into the final judgment of divorce.