THE BASICS OF DIVORCE IN NEW YORK

GROUNDS FOR DIVORCE - Just wanting to divorce is not enough. In New York you can get a divorce only if one party proves fault on the part of the other party or if the parties live separate and apart for one year pursuant to a properly executed Separation Agreement or Judgment of Separation (NOTE: 'Irreconcilable Differences' is not a ground for divorce in New York). At Keith, Shapiro & Ford we have both prosecuted and defended divorce actions in a multitude of circumstances. Many individuals who believed they would not be able to get a divorce found that, following a consultation with us, there was an adequate  basis to file for divorce. Similarly, just because you are being sued for divorce does not mean your spouse will be able to get one. Many times it is the spouse who is at fault that seeks the divorce and the innocent spouse who finds themselves defending it. We can assist in many ways by assessing the basis for a divorce being sought and the way those facts can best be used to our client's benefit. Grounds in New York are:

Abandonment for one or more years  

Physical abandonment means that your spouse has left without justification or your consent and has not offered in good faith to return.

Constructive abandonment, an abandonment for the purposes of establishing grounds for divorce, means that your spouse has refused to have sexual relations without a physical or mental reason for doing so.

Adultery within the past five years without your forgiveness

This ground for divorce is seldom used. Even if your spouse agrees not to contest your divorce action, proof of adultery will be difficult. You will need witnesses as your testimony alone is not legally sufficient against your spouse. Adultery is usually shown by circumstantial evidence and that the spouse had the opportunity, inclination, and intention to engage in sex with another. Courts will generally not grant divorces where there are mutual acts of adultery.

Having sexual relations with your spouse after the discovery of the adultery is interpreted as forgiveness (legally known as condonation).

Cruel and Inhuman Treatment

Physical or mental cruelty that has had such a serious effect on your physical or mental health that it is unsafe or unwise to continue the marriage. Cruel and inhuman treatment can involve either physical or mental abuse. If your marriage is long-term, you will have to provide more examples of such treatment than if you have been married a short time.

Imprisonment for three or more years

You cannot bring this action until your spouse has actually spent three or more years in prison.

Living apart pursuant to a Separation Agreement

Provided that you have lived apart for a year after signing your separation agreement and pursuant to the terms of such agreement, you will be able to sue for divorce based on this "no-fault" ground. (Proof of filing of the Agreement must be submitted when the divorce is filed)

Living apart pursuant to a Separation Decree (a court judgment)

Provided that you have lived apart for a year pursuant to the terms of  Judgment of Separation you may secure a divorce  based upon that fact alone. In order to obtain the Judgment of Separation, you must establish a ground for divorce. Grounds are the fault grounds listed above, except that abandonment may be for less than a year.

JURISDICTION - To get a divorce in New York you must fall within the jurisdiction the Court

You resided in NY for 2 years, or

Your spouse resided in NY for 2 years, or

You were married in NY and you have resided in New York for one year, or

You were married in NY and your spouse has resided in New York for one year, or

You having resided in NY as husband and wife and you have lived here for 1 year, or

You having resided in NY as husband and wife and your spouse has lived here for 1 year, or

The grounds upon which the divorce grounds are founded occurred in NY and either you or your spouse has resided in NY for 1 year, or

The grounds occurred in NY and both parties presently reside in NY
 

Application of the law is always a little more complex than reading the law. Previous Court decisions and philosophical approaches taken by matrimonial judges frequently take that which looks clear on its face and changes it. Grounds for divorce and jurisdiction for the Court to entertain a divorce are issues that go to the very heart of each and every family law matter. Keith, Shapiro & Ford has practiced matrimonial and family law for over 20 years. If you, a friend or family member is contemplating divorce, has been served with legal papers or is currently represented by an attorney with whom you are no longer comfortable why not call us to schedule a free consultation. Knowing your rights and options will allow you to more easily sort out a complex situation.

Keith, Shapiro & Ford - (516)222-0200 
Offices in Nassau and Queens Counties 
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