THE BASICS OF DIVORCE IN NEW YORK

GROUNDS FOR DIVORCE - Just wanting to divorce is not enough. In New York you can get a divorce only if one party proves fault on the part of the other party or if the parties live separate and apart for one year pursuant to a properly executed Separation Agreement or Judgment of Separation (NOTE: Irreconcilable Differences is not a ground for divorce in New York). Grounds in New York are:

     Abandonment for one or more years -

Physical abandonment means that your spouse has left without justification or your consent and has not offered in good faith to return.

Constructive abandonment, an abandonment for the purposes of establishing grounds for divorce, means that your spouse has refused to have sexual relations without a physical or mental reason for doing so.

Adultery within the past five years without your forgiveness

This ground for divorce is seldom used. Even if your spouse agrees not to contest your divorce action, proof of adultery will be difficult. You will need witnesses as your testimony alone is not legally sufficient against your spouse. Adultery is usually shown by circumstantial evidence and that the spouse had the opportunity, inclination, and intention to engage in sex with another. Courts will generally not grant divorces where there are mutual acts of adultery.

Having sexual relations with your spouse after the discovery of the adultery is interpreted as forgiveness (legally known as condonation).

Cruel and Inhuman Treatment

Physical or mental cruelty that has had such a serious effect on your physical or mental health that it is unsafe or unwise to continue the marriage. Cruel and inhuman treatment can involve either physical or mental abuse. If your marriage is long-term, you will have to provide more examples of such treatment than if you have been married a short time.

  Imprisonment for three or more years

You cannot bring this action until your spouse has actually spent three or more years in prison.

  Confinement in a mental institution

  Living apart pursuant to a Separation Agreement

Provided that you have lived apart for a year after signing your separation agreement and pursuant to the terms of such agreement, you will be able to sue for divorce based on this "no-fault" ground. (Proof of filing of the Agreement must be submitted when the divorce is filed)

  Living apart pursuant to a Separation Decree (a court judgment)

Provided that you have lived apart for a year pursuant to the terms of  Judgment of Separation you may secure a divorce  based upon that fact alone. In order to obtain the Judgment of Separation, you must establish a ground for divorce. Grounds are the fault grounds listed above, except that abandonment may be for less than a year.

JURISDICTION - To get a divorce in New York you must fall within the jurisdiction the Court

You resided in NY for 2 years, or

Your spouse resided in NY for 2 years, or

You were married in NY and you have resided in New York for one year, or

You were married in NY and your spouse has resided in New York for one year, or

You having resided in NY as husband and wife and you have lived here for 1 year, or

You having resided in NY as husband and wife and your spouse has lived here for 1 year, or

The grounds upon which the divorce grounds are founded occurred in NY and either you or your spouse has resided in NY for 1 year, or

The grounds occurred in NY and both parties presently reside in NY                                  

Keith, Shapiro & Ford - (516)222-0200 
Offices in Nassau and Queens Counties