Until 2010, New York did not allow no-fault divorce. To get a divorce, a spouse had to prove either that the couple had separated pursuant to a court judgment or written agreement, or that one spouse had committed fault. Now, however, a New York couple can divorce on the same grounds as couples in many other states, by claiming that there has been an "irretrievable breakdown" in their marriage.
No-Fault Divorce in New York
Under New York law, a couple may get a no-fault divorce if one of them has stated, under oath, that their marriage has broken down irretrievably for at least six months. Before a no-fault divorce will be granted, all issues relating to the dissolution -- including property division, spousal support, child support, and child custody and visitation -- must be resolved. This can be done in a separation agreement or by order of the judge.
Other Grounds for Divorce in New York
New York still recognizes fault grounds for divorce as well. A spouse may seek a divorce due to:
- cruel and inhuman treatment by the other spouse, which so endangers the physical or mental well being of the petitioning spouse as to make it unsafe or improper for the couple to continue living together
- abandonment by the other spouse for at least a year
- incarceration of the other spouse for at least three consecutive years after the marriage, or
- adultery by the other spouse.
A spouse may also seek a divorce if the couple has separated. To qualify, the spouse must show that:
- the spouses have lived apart pursuant to a decree or judgment of separation for at least a year, and the spouse seeking divorce has provided satisfactory proof has that he or she has substantially performed all the terms and conditions of such decree or judgment, or
- the spouses have lived apart pursuant to a formal written agreement of separation for at least a year, and the spouse seeking divorce has provided satisfactory proof that he or she has substantially performed all the terms and conditions of such agreement. The separation agreement must be filed in the office of the clerk of the county wherein either spouse resides. Rather than filing the agreement, either spouse may file a memorandum of such agreement, which must be similarly subscribed and acknowledged or proved as was the agreement of separation, and must contain the following information: (a) the name and address of each spouse, (b) the date of marriage of the parties, (c) the date of the agreement of separation, and (d) the date of this subscription and acknowledgment or proof of such agreement of separation.
If you have questions about pursuing a divorce in New York, you should contact an experienced family law attorney in your area.
