In order to obtain a divorce in the State of New York, there are seven ground, or legally acceptable reasons, for a divorce or same-sex divorce in New York State:
- Irretrievable breakdown: This ground is usually referred to as the no-fault divorce. To use this ground:
- The marriage must be over for at least 6 months;
- All economic issues, including debt, how the marital property will be divided, and custody and support of the children have been settled;
- Cruel treatment: To use this ground, the court will examine specific acts of cruelty that occurred in the last five years. It is not enough that the spouses had arguments or did not get along. The cruelty must rise to the level that the spouse is physically or mentally in danger, and it is unsafe or improper for the spouse to continue living with the other spouse;
- Abandonment: To use this ground, the spouse must have abandoned the other spouse for at least one year or more. Two common examples of abandonment include:
- When the spouse physically leaves the home without any intention of returning;
- When the spouse refuses to have sex with the other spouse, known as constructive abandonment;
- Imprisonment: To utilize this ground, the spouse must have been in prison for 3 or more years in a row after the marriage started. A spouse may use this ground while the other spouse is in prison or up to 5 years after the spouse was released from prison;
- Adultery: To utilize this ground, the spouse must prove that the other spouse committed adultery during the marriage. This ground can be difficult to show because evidence from someone besides the spouses is required;
- Divorce after a legal separation agreement: To use this ground, the spouses must sign and file a valid separation agreement and live apart for one year. The separation agreement must meet specific requirements to be valid; and
- Divorce after a judgment of separation: This ground is not commonly used because the Supreme Court has to draw up a judgment of separation, and the married couple must have lived apart for one year.
Irretrievable breakdown, or no-fault divorce, is one of the most common ways to obtain a divorce. Spouses may also obtain a conversion divorce based on a separation agreement that has been in place for a full year.
Even if a spouse wants a divorce based on other grounds, a separation agreement may make a divorce faster and easier. The laws also provide that property should be divided equitably.
This means that the court divides marital property as justly as possible. Typically, the property is divided 50/50, but this is not required.
Additionally, if an individual and their spouse agree on how to divide their property, pay support, and settle their debts, a trial will not be required. A trial typically takes much more time and will cost more money.
It may be helpful to obtain child custody and child support orders from family court before filing for divorce. It is important that the spouses attempt to settle as many issues as possible before attending court.
If an individual’s spouse is abusive, they should seek the assistance of a domestic violence advocate before trying to negotiate these important issues. In addition to emotional reasons to resist a divorce, individuals may have reasons involving money.
Ending a marriage allows a court to divide the spouse’s property, even if they do not agree to do so. An individual’s spouse may want to remain married in order to be eligible for health insurance coverage, or they may want to stay married for ten years to qualify for Social Security retirement benefits.
Even if the spouses do not get a divorce, their spouse must support them for as long as the marriage lasts. An individual can obtain a spousal support order from the Family Court while they are still married.
It is important to keep in mind that, in many situations, starting divorce proceedings while residing with a spouse may be both emotionally difficult and dangerous for the individual or their children if there has been domestic violence in the marriage.
