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Commencing A Divorce In New York

Beginning the divorce process may seem daunting. We are here to walk you through it and ensure you are on the path to the best course of action. For a further explanation of any of the following, or for more specific information tailored to the needs and issues of your particular case, do not hesitate to contact the Law Offices of Joseph S. Gulino, Jr., Esq., PLLC at (914) 292-9272 for a free consultation today.

General requirements that a spouse must satisfy in order to commence a divorce (uncontested or contested) in New York:

RESIDENCY

Spouses seeking a divorce in New York must meet a residency requirement. To satisfy the residency requirement, there are four options: (1) you or your spouse have been living in New York for a continuous period of at least two years before beginning the divorce process; (2) you and your spouse are both residents of New York as of the day you begin the divorce process, and the grounds (the legal reasons) for the divorce occurred in New York; (3) you or your spouse have been living in New York for a continuous period of one year before starting the divorce process, and the grounds occurred in New York; or (4) your marriage was performed in New York or you lived in New York as a married couple, and you or your spouse lived in New York for one continuous year before starting the divorce process.

Once residency is established, the next step is to choose an appropriate grounds for divorce.

GROUNDS

New York has seven grounds (reasons) for divorce, most of which are fault-based. Fault-based divorces are those in which a spouse has committed marital misconduct.  New York also has a no-fault statute. This means that divorce is available regardless of whether there was marital misconduct. All that has to be shown is that one spouse believes the marriage has broken down to the point that the marital relationship can’t be mended.  The grounds for divorce in New York are: cruel and inhuman treatment; abandonmen; imprisonmet; adultery; the couple has been living separate and apart (meaning, they haven’t been living like a married couple) pursuant to a separation judgment or decree (a formal legal order for separation); the couple has been living separate and apart pursuant to a separation agreement (this would be a voluntary agreement, not a court order); and the irretrievable breakdown of the relationship for at least six months (Irretrievable breakdown of the relationship is the no-fault provision. If the plaintiff, the spouse who’s seeking the divorce, swears under oath that the marriage is beyond repair and has been for at least six months, and if the plaintiff and defendant agree on all the economic and custodial issues, or if those issues will be incorporated into a court order because they were tried before a judge, then the divorce will be granted.

THE NEWEST GROUND: COMMONLY CALLED “NO-FAULT DIVORCE” IRRETRIEVABLE BREAKDOWN IN RELATIONSHIP

DRL §170 (7):

To get a divorce on this ground, your relationship with the Defendant must have broken down irretrievably so that it is impossible to repair or reconcile) for a period of at least six months.  This type of divorce is not automatic even though it is commonly called “no-fault divorce.” The court will not grant you a divorce based on this ground unless and until: (a) one of the parties has sworn under oath that the relationship has broken down irretrievably for a period of at least six months; AND (b) you and your spouse have either resolved all the economic issues of distribution of property, spousal support, child support, and counsel and/or experts fees and expenses, and the custody and visitation with the minor children of the marriage OR these issues have been decided by the court and incorporated into the final judgment of divorce.

THE OTHER GROUNDS LISTED IN THE DOMESTIC RELATIONS LAW:

CRUEL AND INHUMAN TREATMENT DRL §170 (1):

The treatment of the Plaintiff by the Defendant must rise to the level that the physical or mental well-being of the Plaintiff is endangered and making it unsafe or improper for the Plaintiff to continue living with the Defendant.  You cannot obtain a divorce on this ground simply because you have arguments or because of an isolated act in an otherwise long and peaceful marriage.  If all or some of the acts occurred more than five years ago and your spouse opposes the divorce, your case may be dismissed.  In describing the specific acts of cruelty, you must be clear and to the point. You must supply the court with details like dates and places.  If you do not remember the exact date, use the words “on or about.” After describing the acts of cruelty you should conclude with the following language: “The conduct of the Defendant was cruel and inhuman and so endangered the physical or mental well-being of the Plaintiff as to render it unsafe or improper for the Plaintiff to cohabit with the Defendant.

ABANDONMENT DRL §170 (2):

An action for divorce may be maintained where the Defendant abandons the Plaintiff for a period of one year or longer prior to commencing the action and continuing to the present.  Abandonment may take the form of your spouse physically departing your marital home without any intention of returning for a period of one year or longer prior to commencing the action, and continuing to the present, without any good reason for doing so and without your consent.  Another form of abandonment is called constructive abandonment, which involves one spouse’s refusal to engage in sexual relations with the other spouse continuously for one year or longer prior to commencing the action, and continuing to the present, without consent, good cause or justification and despite your repeated requests.  Another form of abandonment is called a lockout, which involves one spouse’s refusal to allow the other spouse into the home continuously for more than one year prior to commencing the action and continuing to the present.

IMPRISONMENT DRL §170 (3):

An action for divorce may be maintained by Plaintiff only where the Defendant is imprisoned for a period of at least three consecutive years. The imprisonment must have commenced after the date of the marriage.  If your spouse was released more than five years ago and your spouse opposes the divorce, your case may be dismissed.

ADULTERY DRL §170 (4):

An action for divorce may be maintained based on adultery, which is an act of sexual or deviate sexual intercourse voluntarily performed by the Defendant with a person other than his or her spouse during the course of the marriage.  The ground of adultery can be difficult and expensive to prove because the testimony of the Plaintiff is not enough and other evidentiary requirements must be satisfied (the Defendant’s admission is not enough).  A corroborating affidavit of a 3rd party witness or other proof should be attached to the papers you submit to the court. You should keep in mind that acts of adultery may qualify as acts of cruelty and entitle you to maintain a divorce action on the grounds of cruel and inhuman treatment.  Note: if you found out about the adultery more than five years ago and your spouse opposes the divorce, your case may be dismissed

CONVERSION OF A JUDGMENT OF SEPARATION DRL §170 (5):

This ground is not used often.  It involves a judgment of separation of the Supreme Court.  To maintain a divorce action the parties are required to live separate and apart. They must satisfy the terms of the judgment of separation for more than one year after the judgment was granted.

CONVERSION OF A WRITTEN SEPARATION AGREEMENT DRL §170 (6):

A separation agreement is an agreement between the spouses that sets forth the terms and conditions by which the parties will live apart. The agreement must be signed by the parties before a notary and filed with the County Clerk in the county

where one of the parties resides.  If you and your spouse have lived apart for more than one year according to the terms and conditions of a properly executed separation agreement, you may maintain an action for divorce. It may be advisable to consult an attorney regarding this ground for divorce.

Once residency and grounds are established, it is time to file the necessary court papers to start the divorce:

The “plaintiff” (spouse asking for the divorce) has to prepare a Summons with Notice or the Summons and Verified Complaint (legal paperwork requesting a divorce). BE SURE TO INCLUDE THE NOTICE OF AUTOMATIC ORDERS.  These papers must be filed with the county clerk in the county where the divorce court is located.  The county clerk will charge a filing fee unless the plaintiff is indigent (meets certain low-income guidelines).  At this point, an Index Number will be assigned to your case.  If the plaintiff knows the “defendant” (responding spouse) will agree to the divorce, the plaintiff should also provide the defendant with an Affidavit of the Defendant. If that affidavit is returned and completed, the case can be placed on the uncontested calendar.

Regardless of whether the plaintiff uses a Summons with Notice or a Summons and Verified Complaint, the plaintiff must arrange for personal service (delivery) of the documents on the defendant within 120 days of filing divorce papers. “Personal service” means that someone must personally hand the papers to the defendant.

The “server” (person who delivers the paperwork on the defendant) has to be a resident of New York, over the age of 18, and can’t be a party to the action (meaning, the plaintiff spouse can’t hand the documents to the defendant). Regardless of where the defendant lives, the plaintiff still has to arrange personal service, although under certain circumstances, a court may allow service by publication (posting in an approved newspaper).  If your spouse is presently residing outside of New

York State: You must still ensure that he or she is personally served with the summons. If you use a non-New York State resident to serve your spouse outside of New York State, the server must be a person authorized to make service pursuant to the laws of that jurisdiction or a duly qualified attorney in that jurisdiction, and you must submit a copy of the

authorization that allows that person to serve the summons. You are encouraged to check with the local sheriff and, if necessary, with a country’s Consulate or Embassy as to any local requirements for service

What does “contested” and “uncontested” mean, and why is it important?

“Contested” means that there are critical issues in your divorce that you and your spouse haven’t been able to resolve, either with or without the help of lawyers and mediators. You haven’t been able to agree on key issues like child custody, alimony, or the division of property, or your spouse might not want to be divorced, or disagrees with the grounds you’re citing. The bottom line is that because you can’t agree, you may have to go to trial and let a judge decide for you.

“Uncontested” means that you agree to all the important terms of your divorce. You’ve decided where your children will live and what the visitation schedule will be, you’ve agreed to the terms of alimony and child support, and you know how you want to divide your property. Because you’ve been able to do all the heavy lifting, there’s not very much left for a judge to do but review and approve your agreement if it meets legal standards.

Divorces and Jury Trials:

New York divorce plaintiffs are entitled to a jury trial, but the circumstances are very narrow. The only issue that a jury can decide is the grounds for the divorce.

For example, if the plaintiff asks for a divorce because the defendant’s treatment of the plaintiff was cruel and inhuman, the defendant has a right to demand a jury trial to fight these claims. However, the jury will not have the ability to decide financial issues or issues relating to children, like custody and visitation.

For Uncontested Divorces That Are Settled Outside Of Court, All Papers Will Be Prepared And Filed By The Attorneys Pursuant To The Guidelines Of The County Within Which You Are Filing For Divorce. In Uncontested Divorces, You Will Never Have To Step Foot In A Courtroom. While They May Require Settlement Conferences Between The Spouses And Their Attorneys, Once All Issues Are Resolved All Paperwork Is Completed And Filed Without The Parties Ever Seeing A Judge. Generally, A Judgment Of Divorce Will Be Signed And Forwarded To The Attorney That Filed The Paperwork, Or The Party That Filed The Paperwork If The Parties Are Unrepresented.

For Contested Cases, After Filing And Serving The Summons With Notice Or Summons With Complaint, You Will Need To Place The Case On The Court’S Calendar By Filing A Request For A Preliminary Conference And A Request For Judicial Intervention. This Will Get A Judge Assigned And You Will Be Given A Court Date To Come Before The Judge And Set Up A Schedule For The Case Regarding Discovery And Motions, And To Also Let The Judge Know Which Issues, If Any, Are Already Resolved, And What Issues Are Still Outstanding.

For a further explanation of any of the above, or for more specific information tailored to the needs and issues of your particular case,do not hesitate to contact the Law Offices of Joseph S. Gulino, Jr., Esq., PLLC at (914) 292-9272 for a free consultation today.

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