NEW YORK DIVORCE LAW

A divorce in New York legally ends a marriage; the ex-spouses become single and are able to re-marry if desired. A divorce may encompass many issues such as legal separation, annulment, property division and child support. A divorcing spouse should not discount the advice of a New York divorce attorney.

Legal Separation

Legal separation in New York may be obtained permanently or temporarily. A permanent legal separation or a temporary legal separation may be obtained in New York on the basis of cruel and inhuman treatment, abandonment, failure to support, adultery, and/or confinement of the defendant spouse in prison for three or more years after the marriage.

Grounds For Divorce

When filing for divorce, you must state “grounds for divorce” or reason for your decision to file for divorce, in the documents. Currently, New York only recognizes fault-based grounds for divorce. However, starting on October 12, 2010, no-fault-based divorces will be recognized in New York.

Fault Divorce: An action for a divorce may be filed as a fault-based divorce on the grounds of cruel and inhuman treatment, abandonment for one or more years, imprisonment of defendant spouse for over three years (after the marriage contract begins), and adultery.

No-Fault Divorce: Beginning October 12, 2010, a spouse may file for a no-fault divorce in New York if the relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one spouse has so stated under oath. As this is a recently passed law in New York it is advisable to discuss your divorce options with a New York divorce attorney.

Divorce Residency Requirements

The New York State Supreme Court has jurisdiction over the parties to a divorce and has set the following residency conditions for an action to annul a marriage, declare the nullity of a void marriage, or for a divorce or separation:

  1. One or both spouses must be a resident at the time the divorce action is commenced, and one or both must have resided in the state for at least one year prior to the filing of the action;
  2. If the grounds for the divorce occurred in New York, then both spouses must simply be New York residents at the time the action is commenced;
  3. If the marriage ceremony, cohabitation, and grounds for divorce all took place outside of New York, then one spouse must reside in New York at the time of the filing of the divorce action, and he/she must have been a resident for at least two years before filing.
The residency requirements for divorce in New York are complicated and should be discussed with a New York divorce attorney.

Annulment

Annulment (nullity of a void marriage) in New York differs from divorce or legal separation proceedings in that the annulment declares the marriage to have been invalid, such that it never properly existed in the first place. Thus, a divorce or legal separation is unnecessary. Annulments in New York are granted under a very limited set of circumstances: (1) former husband or wife living; (2) party to marriage is under the age of consent; (3) party to marriage is mentally ill; (4) physical incapacity; (5) incurable mental illness for a period of five years or more; (6) Consent to marriage by force, duress, or fraud (fraud is a substantial and intentional misrepresentation, upon which the annulment petitioner’s consent to marry was predicated). An annulment in New York may be complicated, a New York divorce attorney is recommended.

Property Division in a New York Divorce

Marital property in a New York divorce is divided between two spouses through “equitable distribution.” The New York court will look to a variety of factors to determine an equitable division. Marital property in New York means all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held, except as otherwise provided in an agreement. Marital property shall not include separate property. Separate property in New York shall mean:

  1. property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse;
  2. compensation for personal injuries;
  3. property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse;
  4. property described as separate property by written agreement of the parties pursuant to subdivision three of this part.
In New York, the trial judge has great discretion in determining what is separate or marital property and what is an equitable distribution. It is beneficial for you speak with a New York divorce attorney.

Links to Divorce Statutes

  1. New York Domestic Relations Law
  2. Action for Separation in New York
  3. Grounds For a New York Divorce – Fault and No-Fault
  4. New York Divorce Residency Requirements
  5. New York Annulment
  6. New York Divorce Property Distribution
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