New York State Divorce Law:

In order to file for a divorce in New York State, either spouse must have been a Resident of the State for a certain amount of time, without interruption, generally for one year prior to the filing of the action.

No-Fault Divorce:

Irreconcilable Differences

Fault Divorce:

Adultery

Cruel and Inhuman Treatment

Abandonment

Imprisonment/ Incarceration

Divorce Based on Separation Decree

No-Fault Divorce in NYS:

1. Irreconcilable Differences

Under the No-Fault Divorce law, New York State couples can request a divorce by claiming that there has been an "irretrievable breakdown" in their marriage, which is just a fancy way of saying that the spouses cannot get along anymore and there is no real chance for reconciliation.  In fact, a New York State couple may be granted a No-Fault Divorce if one of the spouses states under oath that the marriage has broken down irretrievably for at least 6 months. But before a court will grant a no-fault divorce, the couple must show that all of their divorce-related issues such as Property Division, Spousal Support, Child Support, and Child Custody have been resolved. This can be done between the spouses in a divorce settlement agreement or by a court order.

Fault Divorce in NYS:

Spouses may still seek a fault-based divorce in New York State by alleging any of the following grounds: ADDIC

1. Adultery

2. Desertion /Abandonment

3. Divorce Based on Separation Decree

4. Imprisonment/ Incarceration

5. Cruel and Inhuman Treatment

Note: Fault-based divorces usually end up in drawn-out divorce battles - complete with lots of dirty laundry being aired out in a public courthouse. These types of intense divorce cases often take a heavy emotional toll on both parties and on any children of the marriage. It’s important to consider very carefully whether filing for a no-fault divorce will provide any advantage that’ll be worth the agony and expense involved.

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.

Desertion/Abandonment

Divorce based on Desertion/Abandonment must allege that one spouse abandons the other spouse for at least one year and that spouse does not intend to come back.

Divorce Based on Separation Decree

To qualify for Divorce based on Separation Decree, the spouse requesting the divorce must show through a notarized affidavit signed by both spouses and filed with the court attesting that: (1) the couple have lived separate and apart with each other under a court-ordered judgment of separation for at least a year and the spouse seeking the divorce has provided proof that he or she performed the terms and conditions of the judgment by not cohabiting with the other spouse during that time, or (2) the spouses have lived separate and apart under a formal written agreement of separation decree for at least a year and the spouse seeking the divorce has provided satisfactory proof that he or she has performed all the terms and conditions of the agreement by not living together with the other spouse and had no intent to reconcile. Note: Both you and your spouse must sign this agreement before a notary.

Imprisonment/ Incarceration

A party may claim Divorce based on Imprisonment/imprisonment if the other spouse is incarcerated for at least three consecutive years or more after the marriage. But if incarcerated spouse was released more than five years ago, then the spouse claiming divorce based on imprisonment/incarceration cannot use this ground as a basis for divorce.

Cruel and Inhuman Treatment

Under NYS law, Divorce based on Cruel and Inhuman Treatment means that the physical and mental health of the spouse seeking divorce is in great danger if she or he continues to live together with the other spouse. Note: If the abusive treatment happened more than five years ago, you cannot divorce for this reason if your spouse objects.

Note: Even though a spouse’s marriage did not work, however, the spouse has the chance to make his or her divorce work. Each of the spouses has a choice to make the divorce work because there are no winners in a divorce case. After the marriage is dissolved, the family will continue to exist in a new form with the children bearing the brunt of the consequential damages. It does not make sense for the spouses to continue to feel anger, resentment, and bitterness after divorce because such ill feelings will have negative effects on the children and the spouses for the rest of their lives. The best advice is to look forward to a new start based on the reasonable obligations the spouses have for the needs of their children. The court, in granting a divorce, will attempt to resolve some of the marital problems that deal with the division of property, support for alimony and child, custody and visitation. Thus, both spouses must be willingness to cooperate with the terms contained in the judgment of divorce for the best interest of their children and the society as a whole.