Family Law/ NY Divorce

 

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NY Divorce:

In order to file for a divorce in New York, either spouse must have been a resident of the State for a certain amount of time, without interruption, generally for one year prior to the filing of the action.



No-Fault Divorce

Under the No-Fault Divorce law, New York couples can request a divorce by claiming that there’s been an "irretrievable breakdown" in their marriage, which is just a fancy way of saying they can’t get along anymore, and there’s no real chance for reconciliation.

A New York couple may get a no-fault divorce if one of them states, under oath, that the marriage has broken down irretrievably for at least 6 months. But before a court will grant a no-fault divorce, the couple must show that all of their divorce-related issues, such as property division, spousal support, child support, and child custody have been resolved. This can be done between the spouses in a divorce settlement agreement or by a court order.

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Fault Grounds for Divorce in New York

Divorcing spouses may still seek a fault-based divorce in New York by alleging any of the following grounds:

  1. Cruel and Inhuman Treatment

  2. Abandonment

  3. Imprisonment/ Incarceration

  4. Adultery

  5. Divorce Based on Separation

Note: Fault-based divorces usually end up in drawn-out divorce battles - complete with lots of dirty laundry being aired out in a public courthouse. These types of intense divorce cases often take a heavy emotional toll on both parties and on any children of the marriage. It’s important to consider very carefully whether filing for a no-fault divorce will provide any advantage that’ll be worth the agony and expense involved.

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Cruel and Inhuman Treatment

Under this ground, this means that your physical and or mental health is in danger if you continue living together.

Note: If the abusive treatment happened more than 5 years ago, you cannot divorce for this reason if your spouse objects.

 

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Abandonment

This means that your spouse abandons you for at least one year. This means that your spouse has left you, or kicked you out, and does not intend to return.

 

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Imprisonment/ Incarceration

Under this ground, if your spouse is incarcerated for at least 3 consecutive years or more after the marriage. However, if your spouse was released more than 5 years ago, you cannot use this ground as a basis for divorce.

 

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Adultery

Your spouse commits adultery. However, this is not a reason for divorce if you do any of the following: encourage your spouse to commit adultery, forgive your spouse by having sexual relations with them after you discover the adultery, or commit adultery yourself. You also cannot divorce because of adultery if it has been more than 5 years since you discovered the adultery. You cannot testify yourself to prove adultery, so you must have a witness who can testify.

 

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Divorce Based on Separation

To qualify, the spouse requesting the divorce must show that:

 • the couple lived apart pursuant to a court-ordered judgment of separation for at least a year, and the spouse seeking the divorce has provided proof that he or she performed the terms and conditions of the judgment, or

• the spouses have lived apart pursuant to a formal written agreement of separation for at least a year, and the spouse seeking the divorce has provided satisfactory proof that he or she has performed all the terms and conditions of the agreement.

Note: Both you and your spouse must sign this agreement before a notary.

 

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Keep In Mind

Regardless of the reasons, and even though your marriage did not work, you have the opportunity to make your divorce work. You each have a choice. There are no winners in a divorce case. Although the marriage is dissolved, the family continues to exist in a new form. You can continue to feel anger, resentment, and bitterness which can have a negative effect on you and your children for the rest of your lives. Or, you may look forward to a new start based on the reasonable obligations of you, your spouse, and the needs of your children. The court, in granting a divorce, attempts to resolve some of the marital problems concerning division of property, support, custody and visitation. To what degree this works, depends on your willingness to cooperate with the terms contained in your judgment of divorce.

 

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