Going through a Divorce can be one of the most stressful and emotional times in your life. Each divorce is unique and the complexity will depend on your individual situation. The first and most important step is to consult with an experienced Divorce Attorney.
In order to proceed with a divorce in New York State you must meet the residency requirement and have a ground for divorce.
Pursuant to DRL § 230 there are five ways to meet the residency requirement in New York State:
- The parties were married in the state and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or
- The parties have resided in this state as husband and wife and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or
- The cause occurred in the state and either party has been a resident thereof for a continuous period of at least one year immediately preceding the commencement of the action, or
- The cause occurred in the state and both parties are residents thereof at the time of the commencement of the action, or
- Either party has been a resident of the state for a continuous period of at least two years immediately preceding the commencement of the action.
Once it is determined that you have met the residency requirement you then have to decide what your grounds are for divorce. There are 7 legally accepted reasons “grounds” for divorce in New York State pursuant to domestic Relations Law § 170:
Irretrievable breakdown in relationship for a period of at least 6 months
This ground is usually referred to as a no-fault divorce. To use this ground, the marriage must be over for at least 6 months, and all economic issues, including debt, how the marital property will be divided, and custody and support of the children have been settled. This ground would be used in an uncontested divorce.
Cruel and inhuman treatment
To use this ground, the judge will be looking for specific acts of cruelty that happened in the last five years. It is not enough that you and your spouse had arguments or did not get along. The cruelty must rise to the level that the Plaintiff is physically or mentally in danger and it is unsafe or improper for the Plaintiff to continue living with the Defendant.
To use this ground, the spouse must have abandoned the Plaintiff for at least one year or more. Two examples of abandonment: where the spouse physically leaves the home without any intention of returning or where the spouse refuses to have sex with the other spouse, this is called “constructive” abandonment.
To use this ground, the spouse must have been in prison for 3 or more years in a row. The spouse must have been put into prison after the marriage began. The Plaintiff can use this ground while the spouse is in prison or up to 5 years after the spouse was released from prison.
To use this ground, the Plaintiff must show that the spouse committed adultery during the marriage. This ground can be hard to prove because evidence from someone besides the Plaintiff and spouse is needed.
Divorce after a legal separation agreement
To use this ground, the Plaintiff and Defendant sign and file a valid separation agreement and live apart for one year. The separation agreement must have specific requirements included to be valid.
Divorce after a judgment of separation
This ground is not used very often. To use this ground, the Supreme Court draws up a judgment of separation and the married couple live apart for one year.
PARTIES IN A DIVORCE
A divorce is a lawsuit, as such there must be a Plaintiff and a Defendant. The Plaintiff is the party bringing the suit. The spouse who files the divorce is the Plaintiff, the non-filing spouse is the Defendant. The Defendant must be personally served with the divorce papers. In the event that the Defendant cannot be served the court can be motioned to grant another mean of service.
The Defendant must answer the divorce complaint. If you are served with a summons and complaint or a summons with notice you must answer the complaint in writing within twenty (20) days of personal service or within thirty (30) days of the time when service by any other means is complete. If the Defendant fails to respond he or she is considered to be in default and a default judgment may be granted to the Plaintiff. You should consult with an attorney if you are served with a summons and complaint or summons with notice.