Divorce

Divorce is the most common legal action ending a marriage. You and your spouse may divorce after litigation or in a friendly manner using a Marital Settlement Agreement. After all the necessary hearings and proceedings, the court will issue a divorce judgment to end your marriage.

Reasons for Divorce

New York now permits no-fault divorce. No-fault divorce does not seek to blame either spouse for the failure of the marriage. There are two possible justifications (also called “grounds”) for a no-fault divorce in New York:

• “Irretrievable breakdown” of the marriage for more than six months – you or your spouse must state under oath that the marriage has broken down irretrievably for a period of at least six months.
• Living apart for at least a year – you must submit evidence that you and your spouse have lived apart for at least 12 consecutive months under either a written Separation Agreement filed with the court or a court-ordered legal separation, and you must show that you have substantially complied with all the terms of the Separation Agreement.

If you have been married less than six months, you cannot ask for a no-fault divorce because you fail both of these qualifications. You may be able to ask for a fault divorce, however, based on cruel and inhuman treatment.

New York law still permits divorce based on the fault of your spouse. There are several reasons that can justify a fault divorce, including:

• Abandonment for one year or more – Abandonment can occur in any one of three ways:
  • Literal abandonment – your spouse leaves the marital residence without reason for one year or more;
  • Lock-out abandonment – your spouse locks you out of the marital residence for one year or more; or
  • Constructive (sexual) abandonment – your spouse refuses (without reason) to have sexual relations with you for one year or more.

• Cruel and inhuman treatment – your spouse mentally or physically abuses you.
• One spouse is in prison for more than three years after the marriage – your spouse goes to prison after you are married and remains there for more than three years. You cannot use this reason if your spouse was in prison at the time of the marriage.
• Adultery – your spouse has sexual relations outside the marriage, and you have never permitted or previously forgiven the adultery, and the adulterous relations occurred within the previous five years.
• Living apart pursuant to legal separation or judgment of legal separation – you or your spouse filed a Separation Agreement or obtained a judgment of legal separation, and then lived apart for more than a year and you have fully complied with the terms of separation.

Types of Divorce Actions

The quickest, least costly and least stressful type of divorce is an uncontested divorce. There are three kinds of uncontested divorce:

• Consensual divorce – when you and your spouse agree between you on the terms of divorce and both of you sign all of the required documents. Sometimes you find during the process that you cannot agree on all terms after all, and the divorce proceeding then becomes contested.
• Default divorce – when your spouse is notified of the divorce proceeding, but does not appear in court or otherwise object to the judgment of divorce. It is very important to preserve strong evidence of the notification in case your spouse later objects and claims he or she was not properly notified.
• Divorce by publication – when you do not know where your spouse is, you can ask the court for an order permitting you to publish a public legal notice of your divorce action. If your spouse doesn’t come forward, the divorce may proceed as a default divorce.

A contested divorce is generally much more time-consuming and costly than an uncontested divorce. It’s also usually more emotionally stressful and damaging to the spouses and, especially, to their children. Even when both spouses want a divorce, you may not be able to agree on all the detailed terms. Sometimes there are intense disputes regarding issues such as division of property, child custody, spousal support, child support and/or shared parenting.

A contested divorce usually ends in one of two ways:

1. With the help of your lawyers and perhaps the court, you and your spouse work out between you a detailed Stipulation of Settlement resolving all the issues and spelling out the terms of the divorce; or
2. The court conducts a trial and decides the terms of divorce.

Only after one of these two things happens – a Stipulation of Settlement or a trial and decision – does the court issue a divorce judgment ending your marriage.

Legal Editors: Charlotte Lee and Dalit Yarden, April 2015 (updated June 2020)