New York State divorce laws require that at least one of the spouses must reside in the state one year prior to filing for divorce. The State of New York is one of the few remaining states where couples must cite “fault” when seeking a divorce. Many people feel that this law is harsh, making one spouse assert allegations against the other, even when those conditions don’t actually exist in the marriage. Currently, there is new legislation pending in to add “irreconcilable differences” so the couple can obtain a “no-fault” divorce. The New York State Senate has passed this bill, as of June 2010, and is now awaiting approval from the New York State Assembly Judiciary Committee.
The Grounds for Divorce in New York
The party who files for divorce is known as the “petitioner” who is required to serve papers on the other spouse, which is called the “respondent”. When seeking a divorce, the petitioner must cite the grounds for the marital split. Currently, there are six different grounds for divorce in New York, which are:
- Abandonment—One spouse has been abandoned by their partner for a period of a year or more or has locked you out of the house. Constructive abandonment may be grounds if your spouse refuses to engage in sexual relations with you for a year or more.
- Committed Adultery—One spouse has committed adultery within the past five years and did not engage in sexual relations with you after learning of the infidelity. Because adultery can be hard to prove, the court cannot grant a divorce based solely on the allegation by one spouse. There must be evidence that a third party was involved.
- Cruel and Inhumane Treatment—Your spouse has engaged in conduct that endangers your physical and/or mental well-being. Due to this behavior, it is impossible for the plaintiff to continue residing with the defendant as husband and wife. If a couple has been married for a lengthy period, and uses this as grounds for divorce, the court will expect the level of cruelty to be egregious in nature.
- Incarceration—Your spouse has been in prison for a term of three consecutive years after the marriage took place. You cannot use this as grounds for divorce if your spouse has been released more than five years ago.
- Conversion of Legal Separation—You did not live together because the family court already granted the couple a legal separation a year prior to the divorce petition being filed. Both parties must adhere to any conditions of the contract.
- Separation Agreement— You and your spouse have lived separately for a period of at least one year and a written document such as an “Agreement of Separation” existed. This document must be notarized and filed with the county clerk’s office where either party resides.
Either a judge or jury can decide to grant a divorce on the grounds cited in the divorce petition. However, only the family court judge can decide how the other issues of the divorce will be handled.
How a Divorce Attorney Can Help
New York State divorce laws can be extremely complex and difficult to understand. The process can be highly emotional for both parties, especially when there is a child custody dispute. One party may need temporary alimony while the divorce is underway. All of these issues can be handled by a professional family court lawyer who will work to ensure that your needs are taken care of during this difficult time.
