Know the Laws: New York
UPDATED January 12, 2009
To learn more about making divorce easier for your children you can visit The New York State Parent Education and Awareness Program. You can also check out Matrimonial Matters for divorce information, including informational video, divorce forms and glossary of legal terms.
- Basic Info
- Who can get a divorce?
- Steps and costs for contested and uncontested divorce
- After filing the divorce
Basic Info
back to topWhat is divorce?
Divorce is a legal action that ends or "dissolves" a marriage. Here are the basic steps for getting a divorce:
- First, you must meet the residency requirements of the state (click on Am I eligible to file for divorce in NY State? to learn about the residency requirements).
- Second, you must have a “ground” (a legally acceptable reason) to end your marriage.
- Third, you file divorce papers and have copies sent to your spouse.
- Fourth, if your spouse disagrees with anything in the divorce papers, then he will have the opportunity to file papers telling his side. This is called “contesting the divorce.” If he contests it, then you will have a series of court appearances to sort the issues out. If your spouse does not disagree with anything, then he should sign the papers and send them back to you. If your spouse agrees with everything and signs the papers, this is called an “uncontested divorce.” Or, if your spouse does not answer the divorce papers within a certain amount of time (and you can prove that he was properly served with the papers), you can get a divorce anyway.
- Fifth, if there is property that you need divided or if you need financial support from your spouse, then the divorce is usually a "contested divorce" and the judge would usually decide how the property will be divided up and if the abuser has to pay you spousal support (also known as alimony or maintenance). Often times, this is worked out between the parties either through negotiations in court or, possibly, in an out-of-court settlement that then becomes part of the divorce decree (order). Custody and child support may also be decided as part of your divorce if those issues were not already handled in family court.
back to topWhat are the grounds for divorce?
"Grounds" are legally acceptable reasons for a divorce. In New York, there are divorces after separation, and fault-based divorces. There is no such thing is NY as "irreconcilable differences."
Divorce after separation - In a divorce after separation, you do not have to have one of the fault-based grounds, or reasons, for the divorce that are listed below. To file for divorce, you and your husband must either have a separation agreement or a court ordered-judicial separation. You also must live separate and apart for one year after the agreement or judicial order before you can be divorced. To understand what needs to be in a separation agreement in order for it to be considered a ground for divorce, it is best to consult a lawyer.
Fault-based – With a fault-based divorce, you do not have to be separated before filing for the divorce. In New York, you can file for a fault-based divorce for any of these reasons:
- Cruel and Inhuman Treatment – This includes physical, verbal or emotional abuse that endangers your physical or mental well being to the point that it is "unsafe or improper" for you to live with the abuser. The judge will require more than that you simply did not get along with one another. The judge will be looking for specific instances of cruelty that occurred in the last five years.
- Abandonment – To file for divorce based on abandonment, your spouse must have abandoned you for a period of one or more years. Specific examples of abandonment by your spouse include a physical move from the home or locking you out of the home. Also, if your spouse has refused to engage in sexual relations with you for at least one year, this can also qualify as abandonment and is known as "constructive abandonment."
- Three Consecutive Years Imprisonment - This is a ground for divorce if your spouse has been in jail for three or more years in a row beginning after your marriage. Once your spouse has been in jail for three years in a row, you can file for divorce:
- while your spouse is still in jail
- up to five years after s/he is released.
- Adultery – You must be able to show that your spouse committed adultery during the marriage. This is usually hard to prove in court, since you need evidence from a third party - someone besides you or your spouse.*
back to topDo I need a lawyer?
It is better to have a lawyer if at all possible. If you are filing for an uncontested divorce and you believe your spouse will not disagree with anything, then you can file without the help of a lawyer following the instructions in What are the steps to obtain a divorce?
If you are asking for custody, child support, financial support, or a share of marital property, you may want to hire a lawyer because there may be things you have not thought of that you can ask for. A lawyer can also help you protect money or property that is yours. Also, it is important for you to find out if your husband has a pension, retirement account, insurance or other significant property before you decide whether to file for divorce. If you do not ask for such things in the divorce, you will give them up forever.
If the only "contested" issues involve custody or visitation of the children and there are no other financial issues or division of property, you might want to deal with custody and child support in Family Court before you file for divorce. Those family court orders would be incorporated into (become part of) the divorce. This may make the divorce uncontested and easier to handle.
If you are low-income, you can get an attorney appointed for you in the divorce but only to handle the custody and visitation portion of the divorce action, not the division of property or support portions. (You could also get an attorney appointed to handle an order of protection if you file for an order of protection during the divorce). Prior to 2006, there was no right to have counsel appointed in a divorce at all. However, a new law went into effect on August 16, 2006, which states that parties in supreme court have the same right to get a lawyer appointed as they would have had if the case were being heard in family court.*
To try to find a free lawyer to handle all aspects of the divorce, you might qualify for help at a legal services or legal aid organization. Please see our NY Finding a Lawyer page for a list of legal links.
If you have to hire a lawyer, articles such as “Hiring a lawyer in New York” may help you in your selection of a lawyer: www.divorcenet.com/ny/nyart33.html
* See NY Judiciary Law § 35(8)