Divorce is the legal process of ending a marriage. A marriage is a legal relationship between a husband and wife that is authorized and regulated by the State. The State of New York has long provided legal processes for marriage and divorce. New York abolished common-law marriage in 1933, although it still recognizes common-law marriages that occurred before then. New York does not recognize any type of implied-marriage, where a man and woman are living together, either. In New York a license is required to marry. Both the bride and groom, in the presence of a town or city clerk, must sign the license.

Grounds for Divorce

The State of New York requires specific grounds to be satisfied for divorce. Unlike most other states, New York does not allow for “no-fault” divorce without prior separation. Thus, in New York, mutual consent, incompatibility and irreconcilable differences are all insufficient to get a divorce. Instead, at least one of the following reasons must be given:

a) Abandonment, continuously for at least one year (Domestic Relations Law §170.2)
b) Adultery (§170.4)
c) Conversion of a separation judgment (§170.5)
d) Conversion of a properly acknowledged separation agreement after living apart for at least one year (§170.6)
e) Cruel and inhuman treatment (§170.1)
f) Imprisonment after marriage for at least three years (§170.3)

A divorce based on adultery or cruel and inhuman treatment does not require a waiting period. However, because of the nature of the claim required, it is possible in New York to have one spouse seek divorce and the other spouse fight the divorce by arguing against the facts required. For this reason, many couples divorcing in New York will follow the path of separation first, and then, divorce later.

After entering into a separation agreement, a married couple must wait one year before filing for a divorce on that basis. If a spouse will not consent to a separation agreement it is possible for the other spouse to sue for separation, yet, they will still need to wait a year thereafter before getting a divorce.

Residence Requirements

A spouse can only commence an action for divorce in New York if the marriage has a certain minimal connection to the State. This connection is based upon the residence of the parties in the State. Before a divorce action can be brought in New York, at least one following residency conditions must be met:

1. The couple was married in New York and at least one of them has been a resident for a minimum of one-year immediately preceding the action for divorce being filed. Note that it is not necessary in this instance that the parties ever lived in the New York as husband and wife, just that they got married here.
2. The couple lived in New York as husband and wife and at least one of them has been a resident for a minimum of one-year immediately preceding the action for divorce being filed. Note, unlike the first basis, this one does not require that the couple got married in New York, just that they lived in the State as husband and wife afterward.
3. The event or events that are the underlying ground for divorce, i.e. adultery, occurred in New York and least one spouse has been a resident for a minimum of one-year immediately preceding the action for divorce being filed. Note that it would generally be the spouse that does not live in New York that would have, while visiting, need to have committed the underlying ground for divorce. Obviously, one cannot cheat on their spouse in New York, live here for one year and then use that as the basis, it would have to be the spouse calming their husband or wife committed adultery who brings the action for divorce.
4. The cause of action or underlying ground for divorce occurred in New York and both parties live in New York. Note in this case, if for example a spouse committed adultery, but did it while out of the State, the residency requirement would not have been met. This is because there is no minimum period of time for residency. The married couple could theoretically have been living in New York for only one day.
5. Either spouse has lived in New York for at least two-years immediately preceding the divorce action being brought. Note that if this residency condition is met it is unnecessary for the parties to have gotten married in New York or for the cause of action to have happened in this State.

Personal Jurisdiction

It is important to realize that even if one of the above residency requirements is met it may still not be possible to get the relief you are seeking in a New York Court. Meeting one of the residency requirements merely means that you can file an action for and get divorced. Usually, a party to a divorce is seeking other relief as well, including support and maintenance. To get this additional relief, such as division of marital assets, Etc., it is necessary that the New York court also have personal jurisdiction over the non-resident spouse. A New York court can acquire personal jurisdiction in any one of the following ways:

1. By serving process, usually meaning proper hand delivery of the summons with notice or a summons and complaint by a process server, upon the non-resident defendant while he or she is in New York.
2. By consent, either express or implied. Thus, the non-resident spouse can agree to appear for a divorce action in New York or can sufficiently imply that agreement and the Court will acquire jurisdiction.
3. If the defendant spouse lives in New York but has left the State and is properly served process wherever they happen to be.
4. If the defendant spouse lives in New York they can also be served through substituted service or publication. This is done when the spouse lives in New York but refuses to open the door; the summons and complaint can be taped to their door; or, if they cannot be found, in some instances, a notice can be published in the newspaper.
5. If the defendant spouse has had recent substantial connections to New York, or if this State was the matrimonial residence or if the defendant spouse abandoned the plaintiff in New York, the Court may acquire what is called “long-arm” personal jurisdiction over the defendant, under section 302(b) of the New York Civil Practice Law and Rules, through proper service out of state.

Changes in The Law

It is important to realize that the laws of New York, like that of any state, are constantly changing. Information about newly enacted laws, as well as copies of the actual bills are available from the New York State Assembly and the New York State Senate. It would be best to consult with a New York attorney who focuses their practice on divorce and matrimonial matters.