A divorce is a lawsuit to dissolve a valid marriage. A divorce case may be contested or uncontested. A contested divorce is one where the parties cannot agree. A judge ultimately will decide the issues that are contested. An uncontested divorce is one where the parties have settled all issues relating to the grounds for divorce, custody of children, child support, maintenance and division of property. An uncontested divorce can also be granted if the defending spouse fails to appear in court after being served with a Summons with Notice for Divorce.
What are the grounds for divorce in New York?
- Abandonment for one year or more
Abandonment can occur in any one of three ways:
- Literal Abandonment—when a spouse simply leaves the marital residence without reason for one year or more;
- Lock-Out Abandonment—when one spouse locks the other spouse out from the marital residence for one year or more; or
- Constructive (Sexual) Abandonment—when one spouse refuses (without reason) to have sexual relations.
- Cruel and inhuman treatment
When one spouse mentally or physically abuses the other to such an extent that it is unsafe for the abused spouse to remain in the house.
- One spouse in prison in excess of three years after the marriage
This ground is unavailable if the imprisoned spouse was in prison at the time of the marriage.
Sex outside the marriage. This ground is unavailable if the other spouse permitted or previously forgave the adultery. The adultery must have occurred within the five years of starting the divorce action.
- Lived apart pursuant to Judgment of Separation
If one spouse has previously sued for and obtained a Judgment of Separation and the parties have lived apart under the terms of the judgment for more than a year.
- Lived apart pursuant to a separation agreement
- “No-Fault” Divorce
When there has been irretrievable breakdown of the marriage for more than six months and all economic issues of equitable distribution of marital property, spousal support, payment of child support, the payment of counsel and experts fees and expenses, as well as the custody and visitation with the children of the marriage have been resolved by the parties or determined by court order.
In a divorce case the judge has the power to make any and all orders or judgments relating to equitable distribution of the properties of the parties, custody of the children, visitation, and child support and maintenance.
I want to file for divorce:
- Determine on what grounds you wish to seek a divorce.
- Document the assets you brought to the marriage and have accumulated since the marriage.
- Consult with an experienced matrimonial, divorce or family lawyer.
Changes may occur in this area of law. The information provided is brought to you as a public service with the help and assistance of volunteer legal editors, and is intended to help you better understand the law in general. It is not intended to be legal advice regarding your particular problem or to substitute for the advice of a lawyer.