Reviewed by Michael Colin Barrows, Esq.
Key Takeaways
- You do not have to be separated to file for divorce in New York.
- Living apart is not a ground by itself. You need a judgment of separation or a filed separation agreement, then six months apart.
- That period was reduced from one year, so older guidance is out of date.
- New York has no “irreconcilable differences” ground. The no-fault ground is irretrievable breakdown for at least six months.
Many couples are under the impression that to file for divorce, they must live separately for some time. However, you may be surprised to learn that being separated is not a requirement for a divorce. As such, it’s imperative to understand what the requirements to get divorced are in New York. If you’re ready to file but aren’t sure if you’re eligible or where to start, the following blog explores what you should know about this process and why connecting with an experienced Long Island divorce attorney is imperative to navigate these matters as smoothly as possible.
Must My Spouse and I Be Separated to Get a Divorce?
If you and your spouse decide to file for divorce, you may be under the assumption that to do so, you must be legally separated first. However, this is not true in New York. While some states still require couples to live separately for a period of time before they can file for divorce, New York is not one of these states. In fact, there are very few requirements to get a divorce in the Empire State.
It’s important to understand that separation is a ground on which you can file for divorce in New York, but simply residing at different addresses is not enough to establish this. In accordance with Domestic Relations Law § 170, you must have a decree or judgment of separation, or a written separation agreement that has been signed and acknowledged in the form required to record a deed, and it must be filed with the county clerk in the county where either spouse lives.
You then must live separate and apart under your judgment, decree, or agreement for six or more months to show that you have met the terms.
You should note that this period was recently reduced to six months from one year, so older guidance may be out of date.
New York Residency Requirements
Generally, you’ll discover that to file for divorce, you need to meet the residency requirements of New York State. Essentially, this means that either you or your spouse must have primary residency in the state for at least two years before the divorce starts or one year if you got married in the state. Additionally, if the grounds for your divorce happened in the state and you were already living in the state, you can file.
Why Do Some Couples Separate Instead of Divorcing?
Because legal separation means you will remain legally married, some couples prefer this option. Common reasons include:
- Religious objections to divorce
- Preference for raising children while still married
- Waiting to see if the relationship can be repaired
- Avoiding the division of a jointly owned business
- Keeping a spouse covered under the other’s employer-sponsored health insurance
Separating is also not wasted effort if you later divorce. Negotiating property division, custody, support, and maintenance once means those terms are already settled, which can make a subsequent no-fault divorce considerably simpler.
What Are the Grounds to File for Divorce in New York?
Aside from separation, there are other reasons you may file for divorce.
The ground most couples choose to file on is the no-fault ground. Essentially, this means the marriage has suffered an irretrievable breakdown for at least six months, as stated under oath by a spouse. Also known as a no-fault divorce, it is not required for either party to prove wrongdoing by the other in order to pursue a divorce.
You should also note that no judgment can be entered when filing for divorce under these grounds until equitable distribution, child custody, child support, alimony, and counsel fees have been resolved or settled by the court.
However, as New York was the last state to adopt a no-fault divorce option, the fault grounds are still honored in the state. As such, the following may be cited by either spouse when filing and must be proven as part of the divorce:
- Adultery
- Abandonment
- Incarceration
- Cruelty
Adultery is defined broadly under § 170(4), covering vaginal, oral, and anal sexual contact with someone other than your spouse. It is a single ground rather than several, so conduct that might be described separately still falls under adultery.
Even though you can file on fault grounds, many couples find it easier to opt for a no-fault divorce. However, what is in your best interest should be discussed with you and your attorney.
Connect With an Experienced New York Divorce Attorney Today
When you’re ready to divorce, Barrows Levy PLLC is here to help. We understand how complicated these matters can be, which is why we are determined to fight for you. Connect with our team today when you’re ready to file to learn how we can ensure you are eligible and meet the necessary requirements.
