Prior to October 13, 2010 New York was the only State that did not have some form of “no-fault” divorce. In short, that meant if you lived in New York and you wanted to be divorced, your spouse had to have committed an act or acts that put him or her "at fault." The most common grounds on which divorces had been granted in New York were abandonment for a period of one or more years, cruelty, or the conversion of a separation agreement.

Abandonment in New York takes several forms. There is actual abandonment – your spouse left you, lock out abandonment – your spouse kicked you out of the marital home, and constructive abandonment – your spouse refused to have sexual relations with you. Constructive abandonment is the ground used most often for divorces on consent.

Cruelty is the ground that divorces are least often used for resolution on consent. It is often alleged at the start of the divorce, if it is believed that the defending spouse will not consent to a divorce. The original ground can be amended later in the case if the divorce is being resolved on consent.

Conversion of a separation agreement was the closest that New York came to a “no fault” divorce. In this type of divorce, the husband and wife enter into a separation agreement settling all issues of the marriage (custody and support of children, distribution of property and spousal support), and after one year, the agreement turns into grounds for divorce. After the year, either the husband or the wife can start a divorce (which is usually uncontested) on the ground of conversion of the agreement.

Some points to keep in mind:

1. A separation agreement is an agreement. Therefore, if you and your spouse cannot reach the terms of an agreement, and you wish to be divorced in New York, you will need to be able to prove some other ground to get divorced.

2. If your spouse will not consent to some ground for your divorce to be resolved on, and you wish to be divorced in New York, you will need to be able to prove your ground to get divorced.

3. If you are not able to meet your burden of proof for a divorce in New York, as silly as it may sound, you can be forced to remain married to your spouse, unless you are able to meet the residency requirements of some other State and get a divorce there.

BUT…

4. Most divorces in New York resolve without trial. Having the right attorney that can help you negotiate a resolution can make all the difference.

New York now has no-fault divorce. So, what does this mean for someone wanting to be divorced in New York? Starting on or after October 13, 2010 (the effective date of the new no-fault legislation), a New York couple can be divorced on the basis of one spouse either testifying or submitting an affidavit to the Court attesting to the fact that the marriage has been irretrievably broken for a period of at least six months.

However...

Before the Court can issue the actual judgment of divorce, all other issues pertaining to the marriage (child custody, child support, maintenance, distribution of property, attorney's fees, etc.) must be resolved either by agreement or decision(s) of the Court.

Residency

In Order to start a divorce in New York, there is a residency requirement that must be met. The residency requirements are as follows:

1. Either you or your spouse has lived in New York for a continuous period of 2 years before starting the action for divorce; or

2. Either you or your spouse has lived in New York for a continuous period of 1 year before starting the action for divorce and the ground for divorce took place in New York; or

3. Either you or your spouse has lived in New York for a continuous period of 1 year before starting the action for divorce and you were married in New York; or

4. Both you and your spouse have lived in New York for a continuous period of 1 year before starting the action for divorce.

Other issues the court must address are child custody, parenting time, child support, maintenance and distribution of property.

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