There are two basic requirements for you to obtain a divorce in New York State. First, you or your spouse must satisfy the residency requirements. Second, you must have grounds for divorce.

 

Residency Requirements for a Divorce in New York State

 

Either you or your spouse is a resident of New York and has been a resident of the state for a continuous period of one year immediately preceding the divorce action and

  o       You were married in New York or

  o       You lived as husband and wife in New York or

  o       The grounds for divorce occurred in New York

 

OR

 

You and your spouse are both residents of New York at the time of the commencement of the divorce action and the grounds for divorce occurred in the state.

 

OR

 

You or your spouse has been a resident of New York for a continuous period of two years immediately preceding the commencement of the divorce action.

 

Grounds for Divorce in New York State

 

Unlike other states, New York does not have what is known as “no fault” divorce. The grounds for divorce, which are spelled out in the Domestic Relations Law, are as follows (Plaintiff refers to the person who starts the divorce action and the defendant is their spouse):

 

• Cruel and inhuman treatment.

The defendant’s conduct must be such that it so endangers  the plaintiff’s  physical or mental well being that it is unsafe or improper for  the plaintiff to cohabit with the defendant. There is extensive case law on the subject of what conduct is sufficient to prove a case of cruel and inhuman treatment. You should discuss your situation with an attorney to determine if you may seek a divorce on these grounds.

 

• The abandonment of the plaintiff by the defendant for a period of one or more years.

The abandonment must be unjustified and without the consent of the plaintiff. The abandonment can be actual abandonment, i.e. leaving the marital residence, or it can be what is known is constructive abandonment. Constructive abandonment means that one party refuses to fulfill the basic obligations of the marriage relationship. Most often this takes the form of the defendant’s unjustified refusal to have sexual relations with the plaintiff, despite the plaintiff’s repeated requests to resume such relations.

• The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.
  
  
• Adultery
  
  
• The husband and wife have lived apart pursuant to a decree or judgment of separation for a period of one or more years. (This is rarely used).

 

•  The husband and wife have lived separate and apart pursuant to a written agreement of separation, for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such agreement. This is a form of no fault divorce. However, you must sign the separation agreement and then wait a year before starting a divorce action. The separation agreement, or a memorandum of the separation agreement, must be filed with the county clerk before a divorce action may be commenced.