Divorce

Laws current as of September 18, 2024

What are the residency requirements to file for divorce in New York?

You may file for divorce in New York if you meet one of these residency requirements:

Either you or your spouse has lived in the state for at least two years immediately leading up to the date you file for divorce;
Both you and your spouse live in New York at the time you file for divorce and the cause for the divorce occurred in New York; or
Either you or your spouse has lived in New York for at least one year immediately leading up to the date you file for divorce and:
- your marriage took place in New York;
- you and your spouse lived in New York during your marriage; or
- the cause (“grounds”) for the divorce occurred in New York.¹

¹ NY Dom Rel Law § 230

What are the grounds for divorce?

“Grounds” are legally acceptable reasons for a divorce. In New York, there are two “no-fault” divorce grounds and several fault-based divorce grounds.

No-fault grounds: In New York, you can file for a no-fault divorce for either of these reasons:

Breakdown of the marriage – You can get a “no-fault” divorce if, according to either party, the marriage has “broken down irretrievably” for a period of at least six months. You do not have to be separated for six months; you just have to allege that the marriage has been completely broken down for at least the past six months. In other states, the common term used for this is “irreconcilable differences.” Note: A judgment of divorce will not be granted under this ground until the following issues are agreed upon by the parties or decided by the judge:

division (“equitable distribution”) of marital property;
the amount of spousal support, if any;
the amount of child support;
how to divide any payments owed for attorney fees and experts’ fees and expenses; and
the custody and visitation of any minor children of the marriage.¹

Divorce after a legal separation agreement – To file for divorce based on this ground, there are two requirements:

Either of the following must be true:
- you and your spouse filed a valid separation agreement that you both agreed to; or
- one spouse filed for a court-ordered judicial separation; and

You and your spouse have lived separate and apart for one year after the agreement or judicial order.³

If you and your spouse decide to sign a separation agreement, it is recommended that an attorney writes it up since there are many specific requirements that it must meet to be acceptable (valid). If the judge decides that it is not “valid,” it cannot be used as the grounds for your divorce.

Fault-based grounds: 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.
Abandonment – Your spouse must have abandoned you for a period of at least one year. 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 is known as “constructive abandonment” and can also qualify you to file under this ground.
Imprisonment for three consecutive years – Your spouse must have been in prison for three or more years in a row but the sentence must have begun after your marriage.
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 someone other than you or your spouse (a “third party”).²

Note: You cannot file for divorce based on “cruel and inhuman treatment” or “imprisonment for three consecutive years” if the events that created the ground happened more than five years before your divorce case is filed.⁴

¹ NY Dom Rel Law § 170(7)
² NY Dom Rel Law § 170(1) - (4)
³ NY Dom Rel Law § 170(5), (6)
⁴ NY Dom Rel Law § 210(a)

Can I get a divorce if my spouse and I still live together?

Yes, if you are filing for a fault-based divorce or under the “no-fault” option. However, if you plan on filing a separation agreement, this requires that the parties live separate and apart for one year after entering into the agreement. However, you should keep in mind that in many cases, starting a divorce action while living with your spouse may not only be emotionally difficult, but it may also be dangerous for you and your children if there has been domestic violence in the home.

Can I get maintenance (spousal support)?

Once you are in the process of a divorce, support is referred to as maintenance, spousal support, or alimony. If you are getting separated or divorced, the supreme court can award you temporary maintenance, which lasts while the divorce case is going on, and post-divorce maintenance, which applies once the divorce is finalized. For temporary maintenance and post-divorce maintenance, there are specific guidelines and a mathematical formula that determines how much you can get. The New York Courts website has an online calculator to help you figure out what you may be entitled to in temporary maintenance and a calculator to help you figure out what you may be entitled to in post-divorce maintenance. However, for both temporary and post-divorce maintenance, the judge can vary from the formulate if s/he determines that the guideline amount of maintenance is unjust or inappropriate.¹

Note: Even prior to filing for a divorce, you may be able to file for spousal support in family court while still married to your spouse.² To read the relevant law, go to our Selected New York Statutes page and read Family Court Act § 412.

¹ NY Dom Rel Law § 236; 236(5-a)(h) ,(6)(c), (6)(e)
² NY Fam Court Act § 412

If I am granted post-divorce maintenance, for how many years can I expect to receive it?

When deciding how many years a spouse will be ordered to pay post-divorce maintenance, the judge may – but doesn’t have to – use the following guidelines:

for a marriage up to and including 15 years, alimony would be paid for a time period that equals 15% - 30% of the length of the marriage;
for a marriage of more than 15 years, up to and including 20 years, alimony would be paid for a time period that equals 30% - 40% of the length of the marriage; and
for a marriage of more than 20 years, alimony would be paid for a time period that equals 35% - 50% of the length of the marriage.¹

In addition to having the option of using these guidelines, a judge must consider 15 factors when determining the amount of time that post-divorce maintenance will be paid, such as the age/health of the parties, and the reduced/lost earning capacity of one spouse as a result of having given up or delayed education, training, employment or career opportunities during the marriage. To read the complete list of the factors that a judge must consider, go to the NY Courts website.

¹ NY Dom Rel Law § 236(6)(f)

Can I get child support?

The court will determine how much money the other parent will pay to support your child. To read more about getting a child support order and modifying a child support order, go to our NY Child Support section.

Do I need a lawyer? What if I can't afford one?

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 may want to file without the help of a lawyer by using the uncontested divorce do-it-yourself program available on the NY State Courts website.

If you are asking for custody, child support, spousal support, or to divide up marital property or marital debt, you may want to hire a lawyer because these issues get quite complicated. Also, it is 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 for divorce. If you do not ask for such things in the divorce, you will give them up forever. Note: 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 could then 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).¹

If you do not qualify for a free, court-appointed lawyer, or if you need a lawyer to handle issues that the court-appointed lawyer won’t handle, there may be help according to the law. The judge can order the spouse who has more money to pay the other spouse’s attorney’s fees and the fees and expenses of experts (such as a forensic psychologist) if this is necessary for the less-monied spouse to be adequately represented in the divorce. The judge will assume that the richer spouse should pay the poorer spouse’s attorney fees although the richer spouse can try to change the judge’s mind and offer evidence to show why this should not be done. The money would be paid during the divorce (not at the end) to your attorney directly.² This law also applies to a court case you may have to later bring to enforce any part of the divorce or custody order that the other spouse is violating.³

Please see our NY Finding a Lawyer page for free legal services and a paid legal referral service. If you have to hire a lawyer, go to our How do I find and choose a lawyer? page.

If you are going to be in court without a lawyer, our Preparing for Court – By Yourself section may be useful to you.

¹ See NY Judiciary Law § 35(8)
² NY Dom. Rel. Law § 237(a)
³ NY Dom. Rel. Law § 237(b)

Where can I find additional information about divorce in New York?

To learn more about making divorce easier for your children, you can visit The New York State Parent Education and Awareness Program’s Handbook. You can also check out the NY Courts website for more divorce information, including an informational video, divorce forms and a glossary of legal terms. You will find more information about divorce, including the risks of taking your children out of state while a divorce is pending, on our general Divorce page. To watch brief videos about divorce in Spanish with English sub-titles, go to our Videos page. Lastly, learn more about the court process on our Preparing for Court – By Yourself page.

You will find more information about divorce, including the risks of taking your children out of state while a divorce is pending, on our general Divorce page. To watch brief videos about divorce in Spanish with English sub-titles, go to our Videos page. Lastly, learn more about the court process on our Preparing for Court – By Yourself page.

Legal Information: New York

New York Divorce