Divorce in New York State

I. THE BASICS

There are two requirements that must be met before the commencement of a divorce action in New York State.

1. The residency requirements as set forth in Domestic Relations Law Section 230 must be satisfied. The Domestic Relations Law is the law that governs divorces in New York State.
2. One of the grounds for divorce set forth in Domestic Relations Law Section 170 must be satisfied.

There are two types of divorce – contested and uncontested. An uncontested divorce occurs when: (a) there are no disagreements between the husband and wife over any financial or divorce-related issues such as child custody, child support, division of marital property or spousal support (maintenance or alimony); and (b) your spouse either agrees to the divorce, or fails to appear in the divorce action.
A contested divorce occurs when one or both spouses disagree with regards to an issue in the divorce proceedings like child support, maintenance, child custody or division of property and the contested issues must be resolved by a judge.

Oftentimes a person may commence a divorce action thinking that the proceeding will be uncontested, but discover later that the spouse has decided to contest ("fight") the case.

II. RESIDENCY REQUIREMENTS

Not everyone is permitted to commence a divorce action in New York. To file for a divorce in New York, certain residency requirements must be met:

1. The marriage ceremony was performed in New York State and either spouse is a resident of New York State at the time of the commencement of the action for divorce and resided in the state for a continuous period of one year immediately before the action began; OR
2. The couple lived as husband and wife in New York State and either spouse is a resident of New York State at the time of the commencement of the action for divorce and resided in New York state for a continuous period of one year immediately before the action began; OR
3. The grounds for divorce occurred in New York State and either spouse is a resident of New York State at the time of the commencement of the action for divorce and resided in New York State for a continuous period of one year immediately before the action began; OR
4. The grounds for divorce occurred in New York State and both spouses are New York residents at the time the action is commenced; OR
5. If you and your spouse were married outside of New York State and you never lived together as husband and wife in New York State and the grounds for divorce did not occur in New York state -- either you or your spouse must presently be a resident of New York State and have resided continuously in New York State for at least two years prior to bringing this action for divorce.

III. 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. You cannot obtain a divorce simply because you do not get along with your spouse ("irreconcilable differences") or because you and your spouse have arguments or because of an isolated act in an otherwise long and peaceful marriage. The legally acceptable reasons, or grounds for divorce, in New York are described in Domestic Relations Law 170. They are: (1) cruel and inhuman treatment; (2) abandonment for one or more years; (3) imprisonment for three or more years; (4) adultery; (5) living separate and apart pursuant to a separation judgment or decree; and (6) living separate and apart pursuant to a separation agreement that has been on file with the Clerk of the Court of at least one year.

Definition of Plaintiff and Defendant — Where you are the person seeking the divorce, you are the Plaintiff and your spouse is called the Defendant.

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.
   
   All acts must have happened within five (5) years of the date the summons is filed with the County Clerk. [A divorce action is commenced by filing a Summons with Notice or a Summons and Complaint with the Clerk of the Court.]
   
   In describing the specific acts of cruelty, you must be clear and to the point. You must supply your lawyer with details like dates and places. If you do not remember the exact date, give an approximate date or time.
   
   
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.
   
   Abandonment may take the form of your spouse physically departing the 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 a period of one year or longer prior to commencing the action, and continuing to the present, without consent, good cause or justification.
   
   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.
   
   
3. IMPRISONMENT — An action for divorce may be maintained 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 and the Defendant must still be in prison when this divorce action is commenced. There is a five year time limit to start the action, beginning from the time of the completion of the third year of imprisonment.
   
   
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). Your attorney will advise you 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.
   
   
5. CONVERSION OF A JUDGMENT OF SEPARATION — This ground is not used often. It involves a judgment of separation signed by a Judge or Referee of the Supreme Court.
   
   To maintain a divorce action, the husband and wife 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.
   
   
6. CONVERSION OF A SEPARATION AGREEMENT — A Separation Agreement is an agreement between the husband and wife 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 with certain legal formalities 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 and the Separation Agreement has been filed with the County Clerk for one year, you may then maintain an action for divorce.

IV. YOUR INITIAL CONSULTATION WITH AN ATTORNEY

1. The initial consultation is when you will meet your attorney for the first time. This consultation serves many purposes:
2. It allows you and the attorney to evaluate one another;
3. It give your attorney an opportunity to learn about you, your family, your marital history, the issues and any unique problems;
4. A Statement of Client’s Rights and Responsibilities is provided to you prior to any discussion with your attorney;
5. The Retainer Agreement and legal fees are discussed; and
6. The attorney will be able to advise you what lies ahead and what to expect in the future.

Reminder: This initial consultation creates from the outset, a confidential and privileged relationship between you and your attorney, regardless of whether a fee is paid by you. Once your case is discussed with an attorney, that attorney cannot represent or even confer with your spouse. You are cautioned that your confidential relationship is broken if a third party is present during this consultation. It is advisable to exclude friends or family members from your discussion with your attorney.

Contact a Westchester County divorce attorney at the office of Grimes & Zimet today . Our lawyers have over 45 years of combined legal experience handling divorces. We pride ourselves on keeping in close contact with our clients at every step of the divorce process. Get in touch with us today to schedule a consultation. During that time we can discuss the possibilities for your case and you can learn how our services can work best for you.

The Law Office of Grimes & Zimet represents clients located throughout the State of New York, including, but not limited to, Westchester County: including the communities of Chappaqua, Armonk, Bedford, Briarcliff Manor, Mount Kisco and Pleasantville; New York City: Bronx; Queens; Kings (Brooklyn);  and New York Counties; Nassau County; Orange County, Putnam County; Rockland County; Dutchess County; and all of the surrounding areas.