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New York has laws that limit how you can get a divorce. This can make it much more difficult to get a divorce in New York than in many other states. There are six grounds (reasons) for divorce in New York. Before listing them, it is important to know that unlike in many other states, there are no "no-fault" divorces in New York for reasons such as "irreconcilable differences". You can only get a "no-fault" divorce if you and your spouse sign a separation agreement and then live apart for at least one year. If your spouse will not sign the separation agreement, you will not be able to get a divorce without accusing your spouse of one of the "6 grounds for divorce" listed below.

You must go to the New York State Supreme Court in your county. All divorces in New York State are handled in the county Supreme Courts.

What are the 6 grounds for divorce in New York?

1. Cruel and inhuman treatment: "Cruel and inhuman treatment" by your spouse. This means that your physical or mental health is in danger if you continue living together. However, if the abusive treatment happened more than 5 years ago, you cannot divorce for this reason if your spouse objects.

2. Abandonment: Your spouse "abandons" you for at least a year. This means that your spouse has left you, or kicked you out, and does not intend to return.

3. Imprisonment: If your spouse goes to jail for three or more years. However, if your spouse was released more than 5 years ago, you cannot divorce for this reason.

4. Adultery: Your spouse commits adultery. However, this is not a reason for divorce if you do any of the following: encourage your spouse to commit adultery, forgive your spouse by having sexual relations with them after you discover the adultery, or commit adultery yourself. You also cannot divorce because of adultery if it has been more than 5 years since you discovered the adultery. You cannot testify yourself to prove adultery, so you must have a witness who can testify.

5. Judgment of Separation: You and your spouse have not lived together because of a "Decree of Separation" or "Judgment of Separation", given by the Court, for at least one year. You must obey all the conditions of the decree or judgment. It is unusual to have a Judgment of Separation because it requires similar proof to that needed for a divorce. Most people skip the Judgment and go directly to divorce.

6. Separation Agreement: You and your spouse have not lived together because of a written "Agreement of Separation" for at least one year. Both you and your spouse must sign this agreement before a notary. You must obey all the conditions of the agreement.

The divorce ground of "cruel and inhuman treatment" is the most common. It is important to remember that "cruel and inhuman treatment" is not a way to get a divorce simply because you and your spouse do not get along. In order for a court to accept "cruel and inhuman treatment" as a good reason for a divorce, you must show that you spouse’s actions put your physical or mental health in danger.

The longer your marriage has lasted, the more proof will be needed to show "cruel and inhuman treatment". For example, only one act of mistreatment will usually not be enough to get a divorce, unless it was very abusive.

Number 6 listed above is sometimes called a conversion divorce. Conversion divorces allow divorces based upon a Separation Agreement that you already had. Basically, you change the Separation Agreement into a divorce. They are often used by couples who want a "no fault" divorce in New York.

Residency requirements allow the court to decide your divorce case. A New York court can only decide a divorce case if at least one of the spouses is a New Yorker. In most cases, one of the spouses must have lived in New York for at least one year before trying to get a divorce.

Property is divided equitably. This means that the court divides the property as fairly as it thinks is possible. Usually the property is divided 50/50, although this does not have to happen. For more information, please see the article "What Happens to Property after a Divorce?"

If you and your spouse can agree how to divide the property, pay support, and settle any debts, the court may allow the divorce because of "cruel and inhuman treatment" even if the proof is a little weak. Also try to get child support and child custody orders from Family Court before you file for divorce. It is important to try and settle as much as possible with your spouse before going to court.

Property cannot be divided without the marriage ending. Your spouse might try to keep the marriage from legally ending because then the property will not be divided. Or your spouse may need to remain married to be eligible for your health insurance coverage, or needs to stay married for ten years to qualify for Social Security retirement. Remember, however, that if you don’t get a divorce, your spouse must still support you for as long as the marriage lasts.

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Legal Assistance of Western New York, Inc.

This article provides general information about this subject. Laws about this subject may have changed since this article was written. For specific legal advice about a problem you are having, get the advice of a lawyer. Receiving this information does not make you a client of our office.