Filing for Divorce in New York

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 What Are the Steps of Getting a Divorce in New York?

Divorce is a legal issue that is up to the states to decide. Because of this, every state has its own laws regarding divorce. This includes every issue, from the grounds for getting a divorce to child custody arrangements to the amount of time the parties have to reside in a state to get a divorce there.

In the State of New York, the residency requirements are specific. There are a number of ways an individual can establish residency, which allows an individual to get a divorce in New York.

If an individual has any questions regarding getting a divorce in New York, they should consult with a local New York attorney.

How Can I Establish Residency in New York for the Purpose of Getting Divorced?

The requirements for establishing residency in the State of New York may be confusing. The fact that an individual currently resides in New York does not necessarily mean that they met the requirements for obtaining a divorce in New York.

Individuals who want to obtain a divorce in the State of New York must meet at least one of the following criteria:

  • New York marriage: The couple might have been married in the state of New York, and one spouse still resides in New York and has lived there continuously for at least 1 year at the time they filed their petition for divorce. If this is the case, they satisfy the residency requirement;
  • New York residence during marriage: The spouses lived together in New York during the marriage and, at the time of filing for divorce, one of the spouses had continuously resided in New York for at least one year;
  • One spouse has resided in New York for two years: In cases where the couple did not get married in New York and did not live there together during the marriage, one spouse must show that they have lived in the state continuously for at least two years;
  • Both spouses lived in New York: This applies if the grounds for filing for divorce arose in New York, both of the spouses were living there at the time, and one spouse has lived in New York continuously for at least one year at the time of filing; or
  • Both spouses live in New York: This applies if the grounds for divorce took place in New York and both spouses still live in New York at the time of filing for divorce. There is no time requirement for establishing residency when both spouses still live in New York.

What Are the Grounds for Divorce in New York?

In addition to establishing the residency requirements in New York, an individual has to have grounds for obtaining a divorce. There are seven grounds for divorce recognized in New York, including:

  • Irretrievable breakdown: The couple must claim that for at least six months, there has been an irretrievable breakdown in the marriage. This ground is typically referred to as “no-fault divorce;”
    • In addition, all issues must have been settled, including:
      • Division of debt;
      • How the marital property will be divided;
      • Whether one party is going to pay the other spousal support;
      • Child custody; and
      • Whether one of the parents is going to pay child support to the other;
  • Cruel and inhuman treatment: The law requires evidence of specific acts of cruelty within the last five years to succeed with a claim of cruel treatment;
    • Spouses who are arguing and not getting along are not sufficient;
    • Cruelty involves acts that put one spouse in physical or mental danger so that it is not safe for one spouse to continue to live with the other spouse who engages in the cruel conduct;
  • Abandonment: One spouse must have abandoned the other for at least one year or longer. The abandonment can be physical or where one spouse simply leaves the home without intending to return. The abandonment can also be constructive, where one spouse refuses to have sexual relations with the other;
  • Imprisonment: If one spouse has been incarcerated for three or more years in a row, the other spouse may seek a divorce on the grounds of imprisonment;
    • The incarcerated spouse must have been put in prison after the marriage began;
    • The spouse seeking the divorce because of imprisonment can claim this reason while the spouse is in prison and for up to five years after the spouse is released;
  • Adultery: To rely on this ground, one spouse has to demonstrate that the other spouse committed adultery during the marriage;
    • This can be hard to prove because evidence from an individual other than the two spouses is needed to prove adultery;
      • Adultery means having sexual relations with an individual other than one’s spouse while married;
  • Divorce after a legal separation agreement: If the spouses signed and filed a valid legal separation agreement with the court and have lived apart for one year, they qualify for a divorce;
    • The separation agreement has to meet certain requirements in order to qualify the couple for divorce on the grounds of legal separation; and
  • Divorce after a judgment of separation: This is a rarely used reason to justify a divorce. It requires the New York Supreme Court to draw up a judgment of legal separation followed by the spouses living separately for one year.

In the State of New York, either of the spouses may file for divorce. The court will treat both of the spouses equally regardless of who files first for divorce.

How Much Does It Cost to Get a Divorce?

The average cost of a New York Divorce is around $16,000. However, there are numerous factors that can drastically change this amount.

For example, an uncontested divorce averages around $5,500. A divorce involving litigation may cost $27,000.

How Long Does It Take To Finalize a Divorce?

The length of time it takes to finalize a divorce will vary depending on the circumstances of the case. The average in New York is 9.5 months.

New York does not require spouses to complete a waiting period before a court will grant them a divorce. In some cases, an uncontested divorce can be resolved in as little as six weeks.

Other divorce cases may take six months or more to resolve. This applies to all divorces, including same-sex divorces.

Will I Need to Provide a Notification to My Spouse?

An individual cannot obtain a divorce without notifying their spouse, which is called service of process. An individual may be concerned about notifying their spouse that they have filed for divorce. In that case, they will want to consult with a New York attorney and share their concern.

An attorney can provide an individual with some measure of legal protection. Both of the parties to a divorce are entitled to have a say.

An uncontested divorce may proceed if a defendant’s spouse does not contest the divorce. The defendant spouse has to sign a document that is called the affidavit of the defendant.

If they sign this document, the plaintiff spouse does not have to serve them with papers. The plaintiff has 120 days to serve the defendant after they file the divorce petition.

These papers have to be hand delivered by an individual who is authorized under the law to serve them, called a process server.

Should I Contact an Attorney for Help With My Divorce Proceedings?

You might be seeking a divorce in New York state. If so, it is essential to consult with a New York divorce lawyer. The residency requirements can be confusing and are only a small portion of the legal issues involved in an already difficult divorce process.

If you have filed for a divorce and your spouse has contested it or you have concerns for your safety, it is important to have legal representation. Your lawyer will help ensure your rights are protected throughout the divorce process.

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