New York

How to Get Divorced in New York

The divorce process in New York can start in a few ways. It can begin with the parties entering into a Separation Agreement, which they will later convert to a divorce action based upon the Separation Agreement.

A Separation Agreement is a written agreement signed by the Husband and Wife, which sets for a resolution on all matters involved in the marriage, i.e. child custody, child support, spousal maintenance, declaration of separate and marital property, the distribution of marital property, etc.

In order to get a divorce based upon this Agreement alone, the parties will need to live separate and apart pursuant to that agreement for at least one year prior to filing an action for divorce.

The second manner in which an eventual divorce proceeding can commence is by filing an action for Separation. This is somewhat similar to the Separation Agreement method above, except that it is being done through the court system, and unless the parties can reach an agreement amongst themselves, the court will make determinations on the issues involved in the marriage as stated above, and then issue a Decree or Judgment of Separation.

The parties again would need to wait one year from the date that Decree or Judgment is entered in order to file an action for divorce to get a legal divorce.

The last way to obtain a divorce is to commence an action for divorce. In October 2010, New York became the last state in the country to have a form of No-Fault divorce.

Prior to this, you had to allege and prove one or more of several grounds for divorce, such as adultery, abandonment for more than one year, cruel and inhuman treatment, confinement in prison for three or more years, living separate and apart pursuant to a decree or judgment of separation for at least one year, or living separate and apart pursuant to a written separation agreement for at least one year.

What the new No-Fault divorce law in New York means is that most, if not every, action for divorce will now be brought under this new law, which does not appear at this point to require any proof to obtain a divorce on that ground.

The new No-Fault law in New York merely requires one party to swear under oath that there has been an irretrievable breakdown of the marital relationship for at least six months. If one of the parties so swears under oath, then the divorce will presumably be granted without anything more.

However, prior to the divorce being granted, there must be an agreement or a determination by the court on all other issues in the marriage, such as child custody, child support, spousal maintenance, and equitable distribution of the marital assets.