New York Divorce Requirements

DIVORCE

Under New York Law, you have the right to represent yourself in all legal cases, including divorce.

The legal term for representing yourself is "pro se," pronounced "pro say") which is Latin for "on your own behalf." Representing yourself is not a good idea for everyone. It is important to understand that by representing yourself, you may be giving up important rights. It is very important for you to find out if your spouse has a pension, retirement account, insurance or other significant property before you decide whether to file your own divorce. If you do not ask for such things in the divorce, you will give them up forever.

Before you file for divorce on your own, you need to talk to your spouse, if possible, and find out how he/she feels about the divorce and about the issues mentioned above. This will give you an indication on how to proceed with the divorce.

The law limits the authority of the court to grant divorces (known as a question of jurisdiction-can this court hear this divorce?). The law also dictates when the court has jurisdiction over a divorce proceeding.

Your divorce action begins when you purchase an index number and file the summons with the County Clerk's office. Your spouse must then be served with a copy of the summons by being personally given the document. It is important to determine where your spouse is located. If he or she lives in New York State, the server must be a resident of New York State, over eighteen years of age, and CANNOT be a party to the action (that means you may not serve your spouse with the summons).

If your spouse is presently residing outside of New York State you must ensure that he or she is personally served with the summons. It is preferable to have this service accomplished by a New York resident, although this might be costly. If you use a non-New York resident to serve your spouse outside the State, the server must be a qualified attorney, solicitor or the equivalent in that state or nation. Otherwise the person must be authorized to serve papers pursuant to the laws of that state.

The person that serves the papers must fill out a notarized affidavit of service as proof that the server did indeed serve the papers.

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RESIDENCY REQUIREMENTS

In New York, you must first satisfy the residency requirements set forth in Domestic Relations Law �230. To file for a divorce in New York you must satisfy one of the following residency requirements:

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

You do not have to remain at the same address to fulfill your residency requirement. You can move anywhere within the state from which you are filing. The forms do not require you to list all addressees, but you should be prepared to prove where you lived during the separation in the final hearing.

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PROOF OF RESIDENCY

Your residency is substantiated by your sworn complaint. The testimony is all that most courts require to verify residency. But cases have been dismissed and even overturned because of improper proof of residency.

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RESIDENT VERSUS NONRESIDENT

A court may take on a divorce proceeding even if your spouse is not a resident of New York. If you or your spouse move to another state after the divorce has been filed, you may still have your case heard in New York.

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HOW TO ESTABLISH RESIDENCY

Register to vote. Get a driver's license. Get a job. Open charge accounts. Register your car. Take out a library card. The list is endless. But whatever you do, do not maintain a residence in another state that could imply that you do not intend to remain in the state from which you file.

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COUNTY JURISDICTION

New York has counties that govern which court your divorce will take place in. This is called venue. The divorce must be filed where either the plaintiff or defendant resides or where either is regularly employed or has a place of business. Divorce are filed in New York Supreme Court.

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DIVORCE: No-Fault

On August 15, 2010, the Governor of New York signed no-fault divorce into law for the state. This law took effect on October 12, 2010. Here's the applicable statute for this new ground: "The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath. No judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce."

Prior to this time, the closet concept to a no-fault divorce in New York was divorce by conversion of a separation agreement, pursuant to DRL � 170[6]. Our divorce materials can be used for either of the no-fault grounds.

The Separation Agreement is an agreement between the husband and the wife which states the terms and conditions under which they will live apart. The agreement contains the names and addresses of the parties, the date of the marriage, the date of the agreement (when signed and when acknowledged) as well as the terms of the agreement. This agreement, signed by the parties and acknowledged before a notary, is filed with the Clerk of the County where either party resides.

If you have a separation agreement that has been properly executed, the agreement has been filed with the County Clerk's office and you and your spouse have lived apart according to the terms of this agreement for more than one year, then you have a ground for divorce.

Once you are sure that you meet the three requirements for filing-residency, jurisdiction of the defendant and a ground for a divorce-you can start your action and later, file your divorce papers. Remember, this is the way you file for an Uncontested Divorce. If your spouse appears and contests the divorce action, you should be prepared for the possibility of going to trial. And before the action is ready for trial, there are other preliminary matters to resolve, including (but not limited to) discovery proceedings, exchanging of pleadings and financial disclosure. Again, our materials are strictly for no-fault uncontested divorce actions only. Our materials can be used for either of the no-fault grounds.

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Grounds

There are three principal players involved in your marriage that will also be involved in your divorce: you, your spouse, and the state. You cannot simply break up, saddle your charger, and ride off into the sunset. Among other legal considerations, you have to give the state an acceptable reason why you should be allowed to break up. The reason is known as the ground for your divorce. Over the years each state has enacted legislation that governs acceptable grounds.

There are different grounds for divorce. In New York, four of the "grounds" are based on the fault of one of the parties. The other three grounds, one year of living apart under a separation agreement, one year of living apart under a separation decree granted by a court and the relationship between husband and wife has broken down irretrievably for a period of at least six months, afford New Yorkers a "no-fault" divorce, in which neither spouse is to be judged at fault. Remember, our materials are strictly for simple uncontested divorce actions only.

The six grounds for divorce in New York are as follows:

  • cruel and inhuman treatment;
  • abandonment for one or more years;
  • imprisonment for three or more years;
  • adultery;
  • written contract of separation and living apart one or more years;
  • court judgment of separation and living apart one or more years;
  • the relationship between husband and wife has broken down irretrievably for a period of at least six months.

Cruel and inhuman treatment can involve either physical or mental cruelty. To justify divorce, treatment must have such a serious effect on the physical or mental health of the divorce-seeking spouse that it is not safe or proper to continue the marriage. Mere incompatibility is not a qualifying reason for divorce in the state of New York. Reasonable examples of cruel and inhuman treatment include physical or verbal abuse; uncontrolled gambling that results in loss of household funds; staying away from the home without reasonable explanation; cheating; wrongly accusing the other spouse of adulterous relations. Alcoholism is inadequate unless accompanied by violence. Each case of divorce stands on its own merits and in general the acts or conduct on which the divorce is based must have occurred within the last five years.

In the case of a separation agreement, certain state specific rules must be followed or the written agreement will not qualify as grounds for divorce. The agreement must be filed with the clerk of the county where either spouse lives. At the end of one year from the date of the agreement, either spouse may sue the other for a "no-fault" divorce. All that must be proven is that an agreement was duly executed, acknowledged and properly filed; that the spouses have in fact been living apart during the period of the agreement, and that the plaintiff has substantially complied with the terms of the separation agreement.

Another form of separation is through a judgment of separation granted by the Supreme Court. This judgment is based on the same four "fault" grounds as for divorce. However, the abandonment may be for less than a year. One year after filing the court judgment of separation, either party may sue for a "no-fault" divorce, based upon one year of living apart. A divorce does not occur automatically, however. Court action must still be taken.

In New York annulment may be declared on one of several grounds. If either spouse is incapable of having sexual intercourse, the marriage may be annulled. Both parties may be over the age of 18 unless one party is between 16 and 18 years old and has parental consent to marry, or is under 16 years old and has parental consent and approval to marry. No person under the age of 14 may be married under any circumstances. A marriage between persons under the age of 18 may be annulled, at the discretion of the court, if the spouse under 18 wants an annulment. Marriages may be annulled if, after marriage, either partner becomes incurably insane for 5 years or more. A marriage may be annulled if either spouse consents to marry as a result of force or if either spouse cannot understand the consequences of marriage. A marriage may be annulled if consent was obtained by fraud. Only the injured spouse, parent or relative may obtain the annulment based on lack of consent. However, cohabitation evidencing forgiveness is an absolute defense.

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ADULTERY

An action for divorce may be maintained based on adultery, which is defined as 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. However, 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). Thus, 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.

Proof of adultery in New York is a difficult matter. A partner may not testify against his/her spouse and must have a witness ready to convince the court that the accused engaged in sexual relations with another person. Adultery is usually proven by circumstantial evidence. In addition, there are four defenses to adultery. Any of which, if proven, will result in the court denying the divorce. They are:

  • "Procurement" or "connivance". Procurement means that one spouse actively encouraged the other to commit adultery. Connivance is similar to "collusion" or "consent" by the spouse to the adultery.
  • "Condonation" or "forgiveness". Having sexual relations with your spouse after discovery of his/her adultery is an absolute defense to divorce action based on adultery.
  • "Recrimination". This defense means that you, too, were guilty of adultery. No matter how convinced the court is that adultery was committed by both parties, it is forbidden from granting a divorce on grounds of adultery.

Adultery is sexual intercourse between a married person and someone other than the spouse. In New York, neither cunnilingus nor fellatio, which the law defines as sodomy, is a ground for divorce and generally neither is considered adultery. The sexual intercourse must involve some penetration of the female organ by the male organ, but a "completion" of the sexual intercourse is not required.

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HOW TO PROVE ADULTERY

There probably is no such thing as a pleasant adultery case; because names, dates, places, paramours, and the like have to be brought out in the open. If your spouse no longer cares about what you know and is open about the affair, you're lucky. You can then catch your spouse flagrante delicto, which means you have your spouse in the flagrant wrong and may not have to worry about hiring detectives. However, you may still need a detective to prove your case in court. There is still a need for a corroborative witness, such as a mutual friend or neighbor, who has no stake in the matter except telling the court what he (she) witnessed.

Most adultery cases are proven by circumstantial evidence, which means that you have to establish that your spouse had the disposition and opportunity to commit adultery.

Public displays of affection, such as hand-holding, kissing, and hugging, between the guilty spouse and the paramour are generally sufficient evidence to indicate an adulterous disposition. Opportunity may be proven by showing that your spouse was seen entering the paramour's apartment at 11 P.M. and not coming out until 8 A.M. the following morning and that they were alone. If you can only prove disposition but not opportunity, the courts may not allow your divorce because the court may reason that it is just mere speculation. The same is true if you only show that there was opportunity, but cannot prove disposition. When you think about it, this seems to make sense.

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NAMING THE CO-RESPONDENT

Sometimes known as a paramour, the co-respondent is the person whom you charge as having committed adultery with your spouse. The co-respondent has the right to hire a lawyer and file an answer to your complaint. Naming co-respondents can get sticky, particularly if your facts are incorrect. You might be damaging the reputation of an innocent person.

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THE ADULTERERS

Adulterers are not equal under the blanket of the law. In New York, adultery may impact custody if the adultery is proven to have harmed or impaired the children. Adultery does not necessarily affect alimony awards in New York. It will, however, be a factor for consideration in awarding alimony.

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CONDONATION

Generally, if you knew your spouse committed adultery but continued to live and cohabit with your spouse, then adultery cannot be used as a ground. Once you resume marital relations, after you learned of the adulterous act, the courts feel that you have forgiven, or "condoned," the act. But, if your spouse starts having affairs again, you can then sue on grounds of adultery. Or, if your spouse has had several affairs and you knew of and condoned only one, you may file on adultery regarding the newly discovered affairs. In New York, however, condonation does not necessarily bar the action for divorce; it now only a "factor for consideration."

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CRIMES

An action for divorce may be maintained where the Defendant has been imprisoned for a period of at least three consecutive years. The imprisonment must have commenced after the date of the marriage.

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ABANDONMENT

An action for divorce may be maintained where the Defendant abandons the Plaintiff for a period of one or more years. Abandonment may take the form of your spouse physically departing your marital home without any intention of returning, without any good reason for doing so and without your consent. A second form of abandonment is where one spouse unjustifiably forces the other spouse out of the marital residence without the other spouse's consent. The third form of abandonment is called constructive abandonment, which involves one spouse's refusal to engage in sexual relations with the other spouse continuously for more than one year without consent, good cause or justification.

Abandonment occurs when the defendant, your spouse, leaves you and your marital home-without your consent or any good reason-and stays away for more than one year, even though you keep asking him or her to return. But there are other kinds of abandonment, such as "constructive abandonment" and "force outs."

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ACTUAL ABANDONMENT

When your spouse packs bags, books, and toothpaste, walks out the door, moves into another apartment, and stays there, he or she is guilty of actual desertion. The spouse voluntarily leaves and has no plans to return except perhaps to pick up a forgotten belonging.

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CONSTRUCTIVE ABANDONMENT

Constructive abandonment, involves one spouse's refusal to engage in sexual relations with the other spouse continuously for more than one year without consent, good cause or justification. If the parties separate, the constructive abandonment ends at the time of their separation.

Another kind of abandonment is called a "force-out." A force out is just what it sounds like; one spouse forces the other out of the home. If a spouse comes home, finds his personal belongings outside, the locks changed and access to the home denied, then the spouse has been forced out. If this situation continues for a period of more than one year, it is a ground for divorce.

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IF THE DESERTER RETURNS:CONSENT

Your spouse has left you, spent six months chasing butterflies, and suddenly wakes up one morning and decides that you are the one after all. In good faith, your spouse shows up at your doorstep and begs you to forgive and forget. In New York, if you say yes, then all is well. But if you say no and refuse to even see or listen to your spouse, then, strange but true, your spouse could sue you for abandonment. The waiting period would start all over again beginning with the time of your refusal. Keep in mind that "good faith" is the key. If, for example, your husband deserted you and then tried to return only after realizing what the high costs of his alimony and legal fees would be, his desire to return would not necessarily be considered "good faith".

Also be aware that an abandonment ends when a separation agreement is signed, if a defendant is incarcerated, or if a defendant is physically unable to return. If any of these events occurs less than one year from the commencement of the abandonment, you cannot use abandonment as a ground for divorce.

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INSANITY

Your spouse must be judged permanently and incurably insane and be confined in an institution or a hospital for a minimum of five years before filing. To prove insanity, two or more psychiatrists are needed to testify that your spouse is incurable and that there is no hope of recovery. The court will appoint an attorney to act in the defense of your spouse whom you purport to be insane. These costs are usually borne by you. In New York, you also must be a resident for two years before filing.

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BIGAMY

Knowingly entering into a bigamous marriage is also a ground for divorce.

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SEPARATION WITHOUT COHABITATION

If your spouse wants a separation and you do not, it is still possible to file under this ground, but the wait is longer. New York requires two years of living apart. Whether the separation is voluntary or not so voluntary, it has to be continuous. This does not mean that you and your spouse can't meet for lunch or dinner on occasion, but it does mean that you cannot have sexual relations with each other. If a candlelight dinner intended to discuss your children's report cards ends up kindling your sexual desire for each other, and you follow your passions into bed, then your waiting period has to start all over again. It will begin the day after your bedroom encounter even if you've been on good behavior for 11 � months. Sex between you and your spouse is strictly forbidden during your waiting period. Sex with others can be a problem, too; the grounds for your divorce could change.

You must live in separate abodes. Even if one person were to live in the attic and the other in the basement, it won't count for "living separate and apart."

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GROUNDS FOR LEGAL SEPARATION

Many people who, for personal or religious reasons, do not wish to obtain a full divorce can get a "limited divorce" instead. New York has no legal separation. A "Limited Divorce" in New York is similar to what is called a "Legal Separation" on other states. Limited divorces are very much like an absolute divorce with the major difference being that the parties cannot remarry. You are, in effect, still legally married at the same time that you are legally separated.

In order to obtain a limited divorce in New York, you must meet residency requirements, grounds, and other legally prescribed laws just as you have to in a case for absolute divorce. Limited divorces can also can involve property settlements, alimony, and child support and custody.

The grounds for obtaining a limited divorce in New York are cruelty or excessively vicious conduct to complainant or minor child; desertion; and voluntary separation beyond any reasonable expectation of reconciliation. The court may require that the parties participate in reconciliation efforts.

The New York courts may grant a limited divorce even though you are seeking an absolute divorce. The courts also may decree these divorces forever or for a limited time only. And finally, New York's limited divorces may be revoked by the courts at any time upon the joint applications of the parties to be discharged. In such cases, you return to the state of being legally married.

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PROVING GROUNDS FOR LEGAL SEPARATION

In order to prove the grounds for a legal separation, you must go through the same processes of proof as you would in a case for an absolute divorce. The courts give the same serious weight to a legal separation as they do to absolute divorces.

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 parties are required to live separate and apart and satisfy the terms of the judgment for more than one year after the judgment was granted.

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FORMS REQUIRED FOR A DIVORCE IN NEW YORK

Marital Settlement Agreement (filed with the Court one year before filing divore papers).
Summons (Form UD-1) OR
Summons (served with Verified Complaint) (Form US-1a)
Verified Complaint (Form UD-2
Affidavit of Service (Form UD-3)
Sworn Statement of Removal of Barriers to Remarriage (Form UD-4)
Affirmation (Affidavit) of Regularity (Form JD-5)
Affidavit of Plaintiff (Form UD-6)
Affidavit of Defendant (Form UD-7)
Child Support Worksheet (Form UD-8)
Note of Issue (Form UD-9)
Findings of Fact/Conclusions of Law (Form UD-10)
Judgment of Divorce (Form UD-11)
Notice of Entry (Form UD-12)
Self-Addressed and Stamped postcard
Certificate of Dissolution
All of these forms are included in our Form Set powered by Rapidocs.

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