Residency and Grounds

Before you file for a divorce in New York State, you must (1) meet the residency requirement, and (2) have a "ground" for the divorce; a legally acceptable reason for the divorce.

 

Residency Requirement

There are a few ways to meet the residency requirement of New York State:

• Either you or your spouse have been living in New York State continuously for at least two years before the divorce case is started;
• Either you or your spouse have been living in New York State continuously for at least one year before the divorce case is started and (1) you got married in New York State, or (2) you lived in New York State as a married couple, or (3) the grounds for your divorce happened in New York State;
• Both you and your spouse are residents of New York State on the day the divorce is started and the grounds for your divorce happened in New York State.

[Domestic Relations Law § 230]

 

The Grounds

There are seven grounds, legally acceptable reasons, for a divorce in New York State:

1. irretrievable breakdown in relationship for a period of at least 6 months
   This ground is usually called a no-fault divorce. To use this ground, the marriage must be over for at least 6 months, and all economic issues, including debt, how the marital property will be divided, and custody and support of the children have been settled.
2. cruel and inhuman treatment
   To use this ground, the Judge will be looking for specific acts of cruelty that happened in the last five years. It is not enough that you and your spouse had arguments or did not get along. The cruelty must rise to the level that the Plaintiff is physically or mentally in danger and it is unsafe or improper for the Plaintiff to continue living with the Defendant.
3. abandonment
   To use this ground, the spouse must have abandoned the Plaintiff for at least one year or more. Two examples of abandonment: where the spouse physically leaves the home without any intention of returning or where the spouse refuses to have sex with the other spouse, this is called "constructive" abandonment.
4. imprisonment
   To use this ground, the spouse must have been in prison for 3 or more years in a row. The spouse must have been put into prison after the marriage began. The Plaintiff can use this ground while the spouse is in prison or up to 5 years after the spouse was released from prison.
5. adultery
   To use this ground, the Plaintiff must show that the spouse committed adultery during the marriage. This ground can be hard to prove because evidence from someone besides the Plaintiff and spouse is needed.
6. divorce after a legal separation agreement
   To use this ground, the Plaintiff and Defendant sign and file a valid separation agreement and live apart for one year. The separation agreement must have specific requirements included to be valid.
7. divorce after a judgment of separation
   This ground is not used very often. To use this ground, the Supreme Court draws up a judgment of separation and the married couple live apart for one year.

[Domestic Relations Law § 170]