No-Fault and Fault-Based Divorce in New York: A Checklist

No-Fault and Fault-Based Divorce in New York: A Checklist

by Ronna L. DeLoe, Esq., February 2016

Divorce in New York used to be one of the most expensive court proceedings in that state. Fault-based divorces, where one of the spouses was “at fault"—such as by committing adultery or by abandoning the other spouse—could take months and even years to resolve. It was not uncommon to spend many thousands of dollars to get divorced in New York. The more spouses litigated fault, the uglier, more expensive, and more stressful the divorce became.

This changed in 2010 when New York became the last state to allow no-fault divorce. Filing a no-fault divorce can save a lot of money because nobody has to prove fault. The addition of no-fault divorce in New York has often eliminated extended trials just to prove the grounds for divorce. Getting a New York divorce is now easier and less costly if spouses file for a no-fault divorce.

Getting Divorced in New York: Fault vs. No-Fault

New York is not a true no-fault state. There are still grounds for divorce, although many people are now filing for divorce under the easier no-fault law.

No-fault divorce means you do not have to prove that the marriage is coming to an end because of something that is the other spouse's fault. All that has to be proved and stated in your divorce papers is that the marriage has been “irretrievably broken" for at least six months. One spouse must state this under oath.

It's that simple. However, a divorce will not be granted unless all the issues of child support, spousal support, distribution of property, custody, and visitation have been decided by the court or have been agreed upon by the parties.

Fault-based divorces are still allowed in many states, and New York is one of them. The fault-based grounds for divorce are:

  • Cruel and inhuman treatment where it is unsafe for the parties to live together
  • Abandonment for a continuous period of one year or more
  • Imprisonment for three or more years after the parties were married
  • Adultery
  • Living apart for one or more years after obtaining a judgment of separation
  • Living apart for one or more years pursuant to a separation agreement

The last two, living apart for one or more years pursuant to a separation, were roundabout ways of getting a no-fault divorce in New York before no-fault was added to the statute.

Additionally, abandonment could constitute actual abandonment or constructive abandonment. Abandonment is where one spouse left the marriage without the intent to return, or where one spouse was locked out of the house. Constructive abandonment is where the spouses, or one spouse, refused to have sexual relations for a continuous period of one year or more.

Using constructive abandonment was a way to obtain something similar to no-fault divorce in New York before 2010. Many divorcing couples alleged constructive abandonment without its necessarily being true. Many judges would sign the divorce papers because spouses could easily prove constructive abandonment by admitting, under oath, that there were no sexual relations for a year or more. Because divorce New York-style was difficult to get, constructive abandonment was often used as a way of getting out of a marriage.

Types of Divorces in New York and Ways to Get Them

There are different types of divorces in New York and different ways to get them.

  1. An uncontested divorce is a divorce where the couple has resolved all major issues, including division of property and debt, custody and visitation, child support, and spousal support.
  2. A contested divorce means there is no agreement on major issues. Some or all issues must be decided by a judge after a trial. Contested divorces are the most expensive and painful types of divorces and take the longest to move through the court system. Both a contested and an uncontested divorce can be filed as a no-fault divorce.
  3. Sometimes divorces will proceed through court without your ever having to set foot in court. These are usually uncontested divorces. In contested divorces, the case will likely proceed to trial.
  4. Mediation is another alternative in New York. A mediator is trained in matrimonial law and helps spouses make their own decisions. Any agreement that is made during sessions with a mediator can be incorporated into the Judgment of Divorce by a New York court.
  5. A divorce by collaborative law allows each side to have an attorney. The parties meet to avoid court and to work out issues that have not been resolved. The lawyers who are hired should be trained in collaborative law.
  6. All of the above information also applies to same-sex couples' divorces.
  7. You can get a divorce in New York by hiring a lawyer, or by doing it yourself, which is not recommended, especially if issues are complex. You also can file for divorce online.
  8. Some states have divorce as well as dissolution of marriage procedures. New York does not call its proceedings dissolution of marriage. However, dissolution of marriage is a special proceeding that is brought when a spouse is missing for five continuous years or more.

Residency Requirements in New York

All states have some kind of residency requirements. New York allows for several different ways to fulfill residency requirements, such as:

  • You were married in New York and one spouse has lived in New York for at least one year.
  • You lived in New York as a married couple and one spouse has lived in New York for at least one year.
  • You or your spouse has lived in New York for at least two years.
  • One spouse resided in New York for at least one year and the cause of the divorce arose in New York.
  • Both spouses are New York residents and the cause of the divorce arose in New York.

In New York, there is no waiting period or cooling-off period.

Filing for Divorce in New York

When filing for a divorce in New York, you will need to file a substantial amount of paperwork, which can be found on the New York court website or on online legal sites. You can also use an attorney who specializes in divorce law.

When you do divorce filing in New York, you seek relief such as:

  • Division of property
  • Division of debt
  • Custody
  • Child support
  • Spousal support or maintenance
  • Visitation
  • Legal fees
  • Life and health insurance
  • Change of surname if desired
  • Order of protection if needed

New York is an equitable distribution state, not a community property state. The property will be divided fairly, not necessarily 50-50. The court will divide property according to what is equitable unless you can agree with your spouse on how you will divide the property.

To find out whether you can get a no-fault divorce in New York, check the residency requirements above. Either hire a lawyer or find a reputable online legal company to do the divorce papers for you. Decide if your divorce will be contested or uncontested, and consider mediation if only a few issues remain unresolved.

Whichever way you proceed, a no-fault divorce can help you save a lot of money and aggravation.

If you're considering divorce, LegalZoom may be able to help. Answer our questionnaire to help determine your specific divorce needs. We'll help create your divorce documents and provide easy-to-follow instructions for how to file all necessary documents with the court.