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Divorce formally dissolves a legal marriage. While married couples do not possess a constitutional or legal right to divorce, states permit divorces because to do so best serves public policy. To ensure that a particular divorce serves public policy interests, some states require a “cooling-off period,” which prescribes a time period after legal separation that spouses must bear before they can initiate divorce proceedings. Family court and matrimonial issues are the most highly charged and contentious matters argued in New York State Court system.

Divorce law and procedures were very stringent until August 15, 2010, as New York recognized divorces only upon fault-based criteria. There was no provision in the divorce law to file a divorce on mutual consent.

The state Senate approved a No-Fault Divorce bill on June 30, 2010. The State Assembly also passed the No-Fault Divorce bill on Thursday, July 1, 2010, after which the Governor signed it into law.

There are six official grounds in the state, not including a no-fault option:

  • Irretrievable breakdown of the marriage, which is the no-fault option: This ground is usually called 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.
  • 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.
  • Abandonment: 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.
  • Imprisonment: 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.
  • Adultery: 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.
  • Living separate prior to judgment: 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.
  • Living separate before to separation agreement: This ground is not used very often. To use this ground, the Supreme Court draws up a judgment of separation and the married couple lives apart for one year.
Prior to 2010, all divorces, even by uncontested consent, had to be based on one of the six grounds stated above. Those grounds did not include accusations of bad conduct against the plaintiff unless such bad conduct rises to the level of cruel and inhuman treatment.
Since 2010, a new ground has been added, effectively permitting no-fault divorce in New York state:
  • The relationship between husband and wife has broken down irretrievably for a period of at least six months.

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New York State Divorce: Residency requirements

  • You or your spouse must have lived in the state for two years or
  • You or your spouse lived in New York for one year before the date you filed for divorce, and you were married in the state or
  • You have lived in the state as a married couple and you were a resident for one year prior to filing or
  • You and your spouse have lived in the state for a continuous year and your grounds and filing occurred in the state or
  • Your spouse and you lived in the state, regardless of how long, on the date your divorce started, and your grounds occurred in the state.

It is estimated that upwards of 95% of divorces in the U.S. are “uncontested” because the two parties are able to come to an agreement (either with or without lawyers/mediators/collaborative counsel) about the property, children, and support issues. When the parties can agree and present the court with a fair and equitable agreement, approval of the divorce is almost guaranteed. If the two parties cannot come to an agreement, they may ask the court to decide how to split property and deal with the custody of their children. Though this may not be necessary, the courts would prefer parties to come to an agreement prior to entering the court.

Most U.S. states charge between $175 and $350 for a simple divorce filing. Collaborative divorce and mediated divorce are considered uncontested divorces. Because of additional requirements that must be met, most military divorces are typically uncontested.

Contact a Family Law Attorney in Manhattan today

Get started with your Divorce right away by calling Dalbir Singh and Associates, PC at 212-428-2000. Our New York City office is conveniently located in the Financial District, at 40 Wall Street, Floor 25, New York, NY 10005. We’re open five days a week.

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