By Christie Nicholson, J.D. | Legally reviewed by John Mascolo, Esq. | Last reviewed October 18, 2024
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Just as states have regulations on marriage, they have them for divorce. Each state has legal requirements for divorce. State laws and court rules outline the procedures a person must follow to get divorced.
In New York, divorce laws allow you to file your case on fault or no-fault grounds. To be eligible to file in New York, you must show that you meet the residency rule. In some states, a married couple must separate for some time before divorce. You do not have to wait in New York to file your case.
This article provides a brief overview of divorce laws in the state of New York.
Before the 1970s, a spouse filing for divorce had to show fault; some conduct by the other spouse supported ending the marriage. Over the last five decades, more and more states adopted no-fault grounds for divorce. Lawmakers saw no good reason to force someone who wanted a divorce to stay married.
New York law has several fault-based grounds for a divorce. These include:
New York has also adopted no-fault divorce grounds. These include:
Parties file a divorce case in the New York Supreme Court in the county where they live. Don't let the court's name confuse you. It is not the highest appellate court in the state.
The Supreme Court is the only trial court in New York that handles divorce cases. The Family Court can't grant a divorce. In most circumstances, a judge will decide all matters in your case. But in cases where a party contests the grounds for the divorce, they can demand a jury trial on that issue.
Of course, more and more couples try to work out divorce terms before filing in court. Spouses can work with attorneys or a trained third party through out-of-court alternative dispute resolution (ADR) programs. For more information, see Divorce and Out-of-Court Proceedings: Alternative Dispute Resolution.
The following table outlines the basic legal requirements for divorce in New York.
| New York divorce laws | Consolidated Laws of New York Domestic Relations Law
|
|---|---|
| Residency requirements | At least one spouse must be a New York resident for a period of at least one year before filing. |
| Waiting period to file a divorce | None. But, a divorce based on an irretrievably broken marriage does require the allegation that the breakdown has been for a least six months. |
| No-fault grounds for divorce |
|
| Fault-based grounds for divorce |
|
| Defenses to divorce | Defenses to adultery include:
General defenses include:
|
Note: State laws are subject to change through new legislation, higher court rulings, ballot initiatives, and other means. While we strive to provide the most current information, consult a divorce attorney or conduct your own legal research to verify the status of any state laws you are reviewing.
You must meet specific legal requirements to file a divorce action in New York. First, you must meet the state's residency requirements. Under most circumstances, you (or your spouse) must live in New York for at least one year before filing your divorce papers.
New York doesn't have a mandatory waiting period. This means you don't have to separate your households or first seek a legal separation to qualify for divorce.
The judge also doesn't need to wait a specific time before issuing your final judgment of divorce. But in a no-fault divorce, a court can't issue a divorce judgment unless the court resolves the following items:
If you aren't sure if divorce is the best option, you may want to pursue a legal separation instead. New York recognizes legal separation. These cases operate similarly to a divorce action.
You and your spouse or partner can file a written separation agreement with the court. Once the judge approves your agreement, they will issue a judgment of separation.
You can also file a contested action for separation. This is like a contested divorce case. You can file an Action for Separation with the court. Your spouse will have a chance to file a response. The court will have a hearing to determine the terms of your separation.
If you separate, you can ask the judge to convert your separation agreement into a marital settlement agreement. This is only possible in an uncontested divorce.
New York State recognizes no-fault divorce. In a no-fault divorce case, you don't have to blame your spouse for the breakdown of the marriage. You must only certify that your marriage is broken and is beyond repair.
New York also recognizes fault-based divorce. In this type of divorce, you must cite specific grounds for divorce.
New York allows divorce if one of the parties can prove one of the following:
If you file a fault-based divorce, you must submit evidence of wrongdoing on the part of your spouse to the court.
Some reasons a spouse seeks a divorce might better fit an action for annulment. For example, seeking an annulment to void a marriage would be appropriate if you discover that your spouse was already married to another person.
If you're lucky, you and your spouse can agree on divorce terms. If so, you will file an uncontested divorce case. Your divorce attorney can submit a copy of your marital settlement agreement to the court for approval.
Once the judge reviews and approves your divorce settlement, they can issue your final divorce judgment. They don't have to wait a specific amount of time to do this because New York doesn't have a mandatory waiting period. Your final divorce judgment will become a court order and is enforceable.
In a contested divorce, the parties disagree on the material terms of the divorce. Some of the issues they may disagree on include:
Your case will go to trial if your attorney can't negotiate a settlement. At trial, you and your spouse will get the chance to argue your cases to the judge. The judge will make the final determinations on these issues.
There is never a guarantee that you'll get alimony in your divorce. You and your spouse can agree to this in an uncontested divorce. Or you can wait to see if the judge grants spousal maintenance during divorce proceedings.
The New York courts consider the following factors when determining spousal support:
Some people assume that the lesser-earning half of a married couple is automatically entitled to alimony. This is not the case. The courts will look at the totality of the circumstances when making this decision.
Child custody is one of the most contentious issues in any divorce. Ideally, you and your spouse will agree to a fair custody arrangement. If this isn't possible, the judge will decide on custody of your minor children. Legal custody is the ability to make important decisions for your child. Physical custody is the parenting time schedule that governs when the child is with each parent.
The court's primary concern when determining custody is the best interests of the child. This is a standard most courts use when deciding on custody and parenting time.
In most cases, the court will defer to calculations from the state's child support guidelines when determining child support. But the court will decide if a particular outcome is in the child's best interests.
New York is an equitable distribution state. This means they don't split marital property 50-50. Instead, the courts do their best to divide marital debts and assets fairly and equitably.
It's best if your divorce attorney can negotiate the division of property with your spouse's lawyer. Nobody understands your priorities on division of marital assets better than you. If you and your spouse can find a fair way to divide the property, you'll have a much better outcome than if you leave it in the hands of a judge — a virtual stranger.
Divorce is typically an adversarial process. The best way to protect your interests is to seek legal advice from an experienced divorce attorney near you. A legal professional will ensure that no property stone is left unturned. They'll also fight to get you custody of your minor children and alimony.
Even in an amicable divorce, the parties fight over issues such as child custody, alimony, and property division. Let your New York divorce lawyer handle this for you. This allows you to start moving on with your life after divorce.
Hire a skilled New York divorce attorney near you.
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