A divorce action may be commenced in New York only if there are sufficient contacts with New York. One of the following conditions must be met:
- At least one of the parties have lived in New York for the last two years
- The marriage took place in New York, and one of the parties has lived in New York for the past year
- The ground for divorce took place in New York, and at least one party has lived in New York for the past year; or
- The ground for the divorce took place in New York and both parties currently live in New York
A same sex couple may divorce in New York, provided that at least one of the above jurisdictional requirements are met and the couple was married in a jurisdiction that allowed same sex marriage at the time of the marriage.
New York has both fault and no-fault grounds upon which to base a divorce. To commence a no-fault divorce, a party must state that the marriage has been irretrievably broken down for more than six months. Although, there is seldom a benefit to use a fault ground for divorce, they are still available to use.
When using a fault ground for divorce, only the innocent party may commence the divorce action, and the other spouse must be the party at fault. Fault grounds include the following:
Abandonment: The spouse who left the marital residence must have been gone for at least one year. In addition to actual abandonment, there are two other types of abandonment. One type is called “lock-out,” which, as the name implies, occurs when the wrongdoer has locked the innocent spouse out of the marital home for at least the past year. The other type of abandonment is known as constructive abandonment, which occurs when the wrongdoer, without valid reason, has refused to have sexual relations with the other spouse.
Inhuman treatment, also known as mental cruelty: The acts of inhuman treatment must have taken place during the marriage, within the previous five years, and have been so serious that it would be unsafe or improper for the innocent spouse to continue to live with the wrongdoer. Any type of physical abuse qualifies as inhuman treatment. Other examples include unexplained absences from the marital residence overnight, gambling household money, spending household money on drugs, falsely accusing the innocent spouse of an affair, physical abuse, and verbal abuse.
A long term marriage or a marriage with minor children requires a higher threshold of abuse as compared to a short term marriage or a marriage without children. However, physical abuse will meet the threshold for inhuman treatment regardless of the duration of the marriage. The party bringing a divorce action based upon inhuman treatment must provide specific information concerning the incidents, such as dates, places and a description of each incident. If the incident was verbal, then the actual words spoken must be included in the divorce papers. Witness statements and police reports are useful when relying upon this ground.
Adultery: Adultery is defined as voluntary sexual intercourse between a married man or woman and a partner other than the man or woman’s legal spouse. Evidence from a third party is required. The following are defenses to adultery: the complaining party encouraged or consented to the adultery, forgave (resumed sexual relations after knowing about the adultery) or also committed adultery, or five or more years have passed since the adultery occurred. Due to the difficulty of proving adultery and the defenses that are available, this ground is seldom used.
Imprisonment: Imprisonment for the past three years is a ground for divorce. Only the party not in prison may bring a divorce action on this ground against the incarcerated spouse. This ground cannot be used if the party in prison was already incarcerated when the marriage took place. The divorce must be commenced within 5 years.
Another way to obtain a divorce in New York without assigning blame is a divorce based upon a legal separation. In order to use legal separation as a ground for divorce the parties must be legally separated for at least one year before the divorce action may be commenced.