New York Divorce Frequently Asked Questions

Divorce litigation occurs when the couple is not able to settle their outstanding issues through other means such as through divorce mediation or through the collaborative process. It typically happens when the couple has difficulty cooperating or one party is being unreasonable. As a result, each spouse must present their case to the judge to resolve the issues.

A legal separation is a court order or agreement that sets forth the legal rights and obligations of a couple while they remain married but live apart. On the other hand, with a divorce the couple is no longer married. In both scenarios the court can issue orders related to child support, spousal support, and division of property. With separation, because the couple is still married, they retain the benefits of marriage such as spousal health care benefits and next of kin status. With divorce, the former spouses lose benefits they were entitled to as spouses and are no longer considered next of kin.

Yes, you can get a divorce without your spouse’s consent. You must first complete the proper paperwork and attempt to get your spouse’s consent. However, if your spouse evades service or refuses to sign the divorce papers, you can still get a divorce. By failing to appear for the hearing the judge may conclude that the spouse consents to the divorce and grant it. Or, you may be able to get a divorce without your spouse’s consent by following your state’s default divorce procedures.

New York Domestic Relations Law § 230 provides different residency requirements depending on your circumstances.

• You can file for divorce if either you or your spouse has lived in New York for a minimum of two years.
• If either you or your spouse has lived in New York for at least one year, you can if one of these apply:
  • You were married in New York.
  • The grounds for divorce occurred in New York, and you both live in New York.
  • You lived together as married in New York, and one of you lived in New York for at least a year immediately prior to filing.

New York Domestic Relations Law § 170 provides seven grounds for a New York divorce:

1. Irretrievable breakdown in relationship for a period of at least 6 months
2. Cruel and inhuman treatment
3. Abandonment
4. Imprisonment for three or more years in a row
5. Adultery
6. Divorce after a legal separation agreement and living apart for at least one year
7. The relationship between husband and wife has broken down irretrievably for a period of at least six months

The seventh grounds for divorce, your relationship breaking down irretrievably is actually a way you can get a no fault divorce. One of you will need to state this under oath.

Immediately speak with your attorney if you think your spouse is hiding assets. There are a number of options your attorney can pursue including a formal deposition under oath and a formal written request to provide financial documents and information. Your lawyer can also subpoena third parties to appear in court and testify under oath.

Yes, you can file for divorce in New York even if you don’t know where your spouse it. You can notify your spouse through substituted service such as publishing notice in a newspaper. The court must approve substitute service.

Now, in New York, couples have an option of using a collaborative divorce process. Each party is represented by a specially trained collaborative divorce lawyer, and they meet several times in order to work out their issues and arrive at an agreeable solution. This is quite different from a contested divorce which can be antagonistic. You will need to consult with a New York collaborative divorce attorney in order to do this.

If you and your spouse can come to an agreement on all the issues necessary to finalize your divorce, the divorce is uncontested. These would include property division, alimony, child custody and child support. If you cannot come to an agreement even with the help of the collaborative divorce process, then your divorce is contested and the judge will decide these issues for you.

You can cancel any time before the final ruling, although there may be court fees. Of course, once the judge issues a final decree, you are divorced.

To protect your interests, you should both hire a good divorce attorney. Certainly, if you and your spouse are hostile or they are not cooperating, you will each need an attorney, particularly if you have valuable property or children.