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Basics of New York Divorce Law

Residency Requirements
Serving the Summons and Service of Process
Grounds for Divorce in New York 
 

New York Has A Version of No-Fault Divorce

New York does not have no-fault divorce as such. Instead, New York's version of a no-fault divorce requires that the spouses live apart from one another for at least a year before a divorce can be filed. The parties must execute a Separation Agreement, which must be filed with the local County Clerk before the one-year period begins to run. The spouse suing for divorce must prove that he or she has substantially performed the terms of the Separation Agreement to obtain a divorce. If you obtain a divorce based on a written Separation Agreement, you don't have to sign any papers or give any testimony about reasons for the divorce. In other words, no personal allegations against either spouse are necessary. There are other grounds for divorce in New York which are explained below.

There are several steps that must be completed before you can file for a divorce in New York State.

Residency Requirements

First, you must satisfy the residency requirements set forth in Domestic Relations Law §230. To file for a divorce in New York you must satisfy one of the following residency requirements:

1)The marriage ceremony was performed in New York State and either spouse was a resident of the state at the time of the commencement of the action and resided continuously in this state for one year immediately before the action began;

OR

2)The couple lived as husband and wife in this state and either one is a resident thereof and resided in this state for a continuous period of one year immediately prior to the commencement of the action;

OR

3)The grounds for divorce occurred in this state and either party is a resident thereof and lived in this state for a continuous period of one year prior to commencement of the action;

OR

4)The grounds for divorce occurred in this state and both parties are New York residents at the time the action is commenced;

OR

5)If you and your spouse were married outside of New York and you never lived together as husband and wife in this state and the grounds for divorce did not occur in this state -- 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 bringing this case.

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Serving the Summons and Complaint

Second, you must ensure that the court has jurisdiction over your spouse (the Defendant) by arranging for him or her to be served with a Summons and Complaint or a Summons With Notice.

Step 1: Your divorce action begins when you purchase an index number and file the summons with the County Clerk’s office.

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 summons).

If 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 be costly. If you use a non-New York State resident to serve your spouse outside of the State, the server must be a qualified attorney, solicitor or the equivalent in that state or nation. Otherwise the person must be authorized to serve papers pursuant to the laws of that state.  

The person that serves the papers must fill out a notarized affidavit of service as proof that the server did indeed serve the papers. This document will be addressed later in this information packet.


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Grounds for Divorce

Finally, you must satisfy one of the grounds for divorce set forth in Domestic Relations Law §170.  

There are six grounds for divorce in New York. In order to prevail in an action for divorce, certain elements must be proved. Failure to prove the elements required for a divorce results in the action being dismissed.

The six grounds 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 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. Again, 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 full year.

3. The confinement of the defendant in prison for a period of three 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 consecutive years. Being sentenced to more than three years in prison 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, provided that adultery for the purposes of articles 10, 11 and 11-A of this chapter, is hereby 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 the penal law.

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 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 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 documents in this Kit are designed to enable you to secure a divorce using this ground. You cannot use these documents if you plan on securing a divorce based on one of the other fault grounds.

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.

This ground for divorce is also known as a "conversion" divorce. If, after the execution of a separation agreement, the parties live separate and apart for one or more years, either party may commence an action for divorce based upon the separation agreement. The party commencing the divorce action must allege and prove that he/she has substantially performed all of the terms and conditions of the agreement. This ground is also referred to as a "no fault" ground since the divorce is not based on fault but the living separate and apart for one or more years. However, the execution of a separation agreement is a voluntary act of the parties, i.e., one cannot be forced to sign a separation agreement. Of course, even after the execution of a separation agreement is a voluntary act of the parties, i.e., one cannot be forced to sign a separation agreement.

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