NY Divorce Information

New York Uncontested Divorce Information

As a service to you, I have compiled the following free uncontested divorce law information in one place for your convenience.

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NY Divorce Residency Requirements

First, you must satisfy the residency requirements (or how long you’ve lived in NY) set forth by New York law. To file for a divorce in New York you must satisfy one of the following residency requirements:

• The marriage ceremony was performed in New York State and either you or your spouse was a resident of the state (meaning lived in NY) at the time the divorce proceedings began and resided continuously in New York for one year immediately before the divorce began;

OR

• You and your spouse lived as husband and wife in New York and either you or your spouse is a resident of NY and resided in this state for a continuous period of one year immediately prior to the beginning of the divorce proceedings;

OR

• The grounds for divorce (i.e., reasons justifying the divorce) occurred in New York and either you or your spouse is a NY resident and lived in NY for a continuous period of one year prior to beginning of the divorce proceedings;

OR

• The grounds for divorce (i.e., reasons justifying the divorce) occurred in New York and you and your spouse are New York residents at the time the divorce proceedings begin;

OR

• If you and your spouse were married outside of New York and you never lived together as husband and wife in New York and the grounds for divorce did not occur in NY — 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 starting the divorce case.

Serving the Summons and Complaint

Secondly, you must ensure that the court has jurisdiction over (i.e., the power to hear a case against) your spouse. This is done by arranging for him or her to be served (personally delivered) a legal document called a Summons and Complaint or a Summons With Notice.

Step 1: Your divorce action officially begins when you or your attorney purchase an index number and file the summons with the County Clerk’s office ($210 filing fee).

Step 2: 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” (this means YOU MAY NOT serve your spouse with the divorce papers).

If, on the other hand, your spouse is presently residing outside of New York State you must still 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 end up being too costly. If you use a non-New York State resident to serve your spouse outside of the State, the server must be either a qualified attorney or solicitor or be deemed qualified by the laws of that state or nation where the spouse resides to legally serve him or her.

The person that serves the papers must complete, execute and notarize an affidavit of service as proof that the server did indeed serve the papers (this document will be addressed below)…

New York No Fault Divorce

New York State has its Own Version of “No-Fault” Divorce

A “no-fault” divorce means a divorce where its not necessary to prove that your spouse has done something to you to justify getting divorced. Its important to note that New York doesn’t have the same “no-fault” divorce laws as other states, but instead requires that:

• you and your spouse live apart from one another for at least a year before a divorce can be filed

• you and your spouse must execute a Separation Agreement, which must be filed with the local County Clerk before the stopwatch on the one-year period begins to tick

• you (the spouse suing for divorce) must prove that you have substantially performed the terms of the Separation Agreement to obtain a divorce

• if you obtain a divorce based on a written Separation Agreement, you won’t have to sign any documents or give any testimony about reasons for the divorce (in other words, you won’t have to make any personal allegations against your spouse, or vice versa).

There are other grounds or reasons that justify getting a divorce in New York, which are explained below…

NYS Grounds for Divorce

Finally, you must satisfy one of the grounds for uncontested divorce set forth in New York law.

***UPDATE*** As of October 14, 2o10 New York now allows no-fault divorce.  To learn more call (866) 830-2064.

There are six (6) grounds for (or reasons justifying) uncontested divorce in New York State. In order to prevail in an action for uncontested divorce, you must prove certain things. Failure to prove the elements required for a divorce results in the action being dismissed (i.e., thrown out of court).

The six (6) grounds for uncontested divorce are as follows:

1. The cruel and inhuman treatment of plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant.

There is no precise definition of the type on conduct that warrants a court in granting a divorce based on cruel and inhuman treatment. Each case is decided on its own facts. Verbal abuse, as well as physical abuse, can constitute cruelty provided the conduct is such that it renders it unsafe or improper for the parties to cohabit. In the case of Brady v. Brady, 64 NY2d 339 (1985), the Court of Appeals said that in a marriage of long duration a high degree of proof is needed to dissolve a marriage on the grounds of cruel and inhuman treatment.

2. The abandonment of the plaintiff by the defendant for a period of one (1) or more years.

Actual abandonment consists of the unjustified leaving of the marital home by one of the parties. If one of the parties leaves the marital home with the consent of the other party, there is no abandonment.

Another form of abandonment is constructive abandonment, which is the unjustified refusal to engage in sexual relations with the other party. Although, if both parties consent to not engage in sexual relations, there is no constructive abandonment by either party. At the time of the commencement of the action, the abandonment must be one (1) full year.

3. The confinement (i.e., imprisonment) of the defendant in prison for a period of three (3) or more consecutive years after the marriage of plaintiff and defendant.

At the time that a party commences a divorce action on this ground, the defendant must have been confined in prison for three (3) consecutive years. Being sentenced to more than three (3) years in prison alone does not give rise to a cause of action. The cause of action does not arise until three years of confinement has elapsed.

4. The commission of an act of adultery, is defined as the commission of an act of sexual or deviate sexual intercourse, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of plaintiff and defendant. Deviate sexual intercourse includes, but not limited to, sexual conduct as defined in subdivision 2 of Section 130.00 and subdivision 3 of Section 130.20 of New York Penal Law.

[A little divorce history for those of you so inclined: Adultery has been a ground for divorce since legislative divorce was enacted in 1787. Until the Divorce Reform Law in 1966, effective in 1967, it was the sole ground for divorce.]

Adultery can be proved by direct evidence or circumstantial evidence. Adultery cannot be proved by the confession of the party alone. Also, a spouse cannot prove adultery by his/her direct testimony, since Section 4502 of the Civil Practice Law and Rules provides that a spouse is incompetent to testify against the other spouse in a divorce founded upon adultery.

Section 171 of the Domestic Relations Law provides for four (4) affirmative defenses to a divorce action based on adultery. An affirmative defense is one that must be pleaded. If proved, an affirmative defense results in the dismissal of the divorce action. The four (4) affirmative defenses are:

1. Procurement or connivance. Procurement is the encouragement of adultery. Connivance is the consent to the adultery.

2. Forgiveness. A resumption of sexual relations after discovery of the adultery results in forgiveness (condonation).

3. Statute of limitations. A divorce action founded on adultery must be brought within 5 years of the discovery of the adultery.

4. Recrimination. This defense means that if the plaintiff is also guilty of adultery, he/she will not be granted a divorce.

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

This ground for divorce is known as a “conversion divorce”. If, after a judgment of separation has been granted, the parties live separate and apart for one or more years, either party may commence a divorce action based on the judgment of separation. The party commencing the action must allege and prove that he/she has substantially performed all of the terms and conditions of the judgment. Section 200 of the Domestic Relations Law sets forth the grounds for a judicial separation.

6. This is the ground that most people in New York used to secure a no-fault divorce.

The husband and wife have lived separate and apart pursuant to a written agreement of separation, subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded, 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 or she has substantially performed all of the terms and conditions of such agreement. Such agreement shall be filed in the office of the clerk of the county wherein either party resides. In lieu of filing such agreement, either party to such agreement may file a memorandum of such agreement, which memorandum shall be similarly subscribed and acknowledged or proved as was the agreement of separation and shall contain the following information: (a) the names and addresses of each of the parties, (b) the date of marriage of the parties, (c) the date of the agreement of separation, and (d) the date of the subscription and acknowledgment or proof of such agreement of separation.

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Disclaimer: The above information is for informational purposes only and should not be deemed as legal advice. The information presented above is not meant to negate your need for the representation of an attorney.