Basic Legal Requirement to File For a Divorce in New York

In order to file for divorce in New York, you need to meet certain legal requirements. In other words, just because you live in New York now or got married in New York, may not qualify you for filing for a divorce in New York State.

In legal terms, you have to establish what is known as “residency”. The legal definition of “residency” is different than what is your current place that you live in. To establish “legal residency” so that you can file for a divorce in New York State, you must have ONE of the following:

• Either you OR your spouse have lived in New York State for at least two years immediately prior to filing for divorce. You also have to properly plead grounds, here the grounds did not have to happen in New York (see below); OR
• Both you AND your spouse currently live in New York State at the time of filing for divorce. Additionally, the grounds for divorce occurred in New York State (see below); OR
• Either you OR your spouse has lived in New York for at least one year immediately prior to filing for divorce. Additionally, you were married in New York, you both lived in New York during your marriage or the grounds for divorce occurred in New York (see below).

As you can see, in addition to establishing legal residency, you have to establish “grounds”. “Grounds” give the Courts the basic reason why you should be granted a divorce. Since 2010, it is much easier to establish grounds, as now New York recognizes “no fault divorce.” No Fault divorce is explained below.

There needs to be a legally acceptable reason to get divorced in New York. There are seven acceptable grounds for divorce in New York. They are:

• Cruel and inhuman treatment by your spouse. This is when your physical or mental health is jeopardized by continuing to live together.
• Abandonment: your spouse abandons you for at least a year. This can include your spouse leaving you, kicking you out and/or not intending to return to the home.
• Imprisonment: your spouse is imprisoned for three or more years.
• Adultery: your spouse commits adultery. A witness is required to testify.
• A separation agreement: You and your spouse have not lived together for at least one year due to a separation agreement. The agreement must be signed by both you and your spouse in front of a notary and the agreement must abide by the legal requirements for a Separation Agreement.
• “No Fault Divorce.” To plead a no fault divorce, you state that there has been an “Irretrievable breakdown of the relationship for at least six months.” Since 2010, virtually every divorce, in New York State, uses this as the grounds for divorce. You don’t have to prove irretrievable breakdown, you simply tell the Court that this is your grounds. One possible issue is that you should be married at least 6 months to use the no fault divorce as your grounds.

Once you meet the residency and grounds requirements, you can begin to file for a divorce in New York State.

It is important to consider consulting with and retaining an attorney who has the experience to know if you can file in New York and to protect your legal rights. If you are contemplating getting a divorce, call David Badanes at 631-239-1702 or email us at david@dbnylaw.com. The Badanes Law Office has offices in Northport and Uniondale.

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