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Divorce Requirements in New York
There are two basic requirements that must be satisfied before a divorce action can be filed in New York State, the "residency" requirements as set forth in New York Domestic Relations Law Section 230; and one of the "grounds" for divorce set forth in New York Domestic Relations Law Section 170.
Grounds for Divorce in New York
In order to file for a divorce in New York, the party bringing the action, the plaintiff, must have grounds (a legally acceptable reason) for the granting of a divorce by New York courts. The grounds for divorce in New York, which can be found in Domestic Relations Law §170, are:
1. Cruel and Inhuman Treatment
5. Living Separate and Apart Pursuant to a Separation Judgment or Decree
6. Living Separate and Apart Pursuant to a Separation Agreement
7. Irretrievable Breakdown in Marriage ("no-fault").
Cruel and Inhuman Treatment
The treatment of the Plaintiff by the Defendant must rise to the level that the physical or mental well being of the Plaintiff is endangered thereby making it unsafe or improper for the Plaintiff to continue living with the Defendant. Plaintiff’s cannot obtain a divorce simply because they do not get along with their spouse ("irreconcilable differences"), or because they have arguments, or because of an isolated act in an otherwise long and peaceful marriage. All actsmust have happened within five (5) years of the date the divorce action is commenced.
An action for divorce may be maintained where the Defendant abandons the Plaintiff for a period of one year or longer prior to commencing the action and continuing to the present. Abandonment may take the form of the defendant physically leaving the marital home without any intention of returning for a period of one year or longer prior to commencing the action, and continuing to the present, without any good reason for doing so and without the Plaintiff’s consent. Another form of abandonment is called constructive abandonment, which involves one spouse's refusal to engage in sexual relations with the other spouse continuously for one year or longer prior to commencing the action, and continuing to the present, without consent, good cause or justification. Another form of abandonment is called a lock out, which involves one spouse's refusal to allow the other spouse into the home continuously for more than one year prior to commencing the action and continuing to the present.
An action for divorce may be maintained where the Defendant is imprisoned for a period of at least three consecutive years. The imprisonment must have commenced after the date of the marriage and the Defendant must still be in prison when the divorce action is commenced. There is a five (5)-year time limit to start the action, beginning from the time of the completion of the third year of imprisonment.
An action for divorce may be maintained based on adultery, which is an act of sexual or deviate sexual intercourse voluntarily performed by the Defendant with a person other than his or her spouse during the course of the marriage. The ground of adultery can be difficult and expensive to prove because the testimony of the Plaintiff is not enough and other evidentiary requirements must be satisfied (the Defendant's admission is not enough).
Conversion of a Separation Agreement
A separation agreement is an agreement between the spouses that sets forth the terms and conditions by which the parties will live apart. The agreement must be signed by the parties before a notary and filed with the County Clerk in the county where one of the parties resides.If the parties have lived apart for more than one year according to the terms and conditions of a properly executed separation agreement, either party may maintain an action for divorce.
Conversion of a Judgment of Separation
This ground involves a judgment of separation signed by a Judge or Referee of the Supreme Court. To maintain a divorce action the parties are required to live separate and apart. They must satisfy the terms of the judgment of separation for more than one year after the judgment was granted.
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