MATRIMONIAL LAW

DIVORCES

Jurisdiction
In order to receive a divorce in New York, the State of New York must have an interest in the marriage.  That means that you must have:

• The husband or wife has been resident of the State of New York for a continuous period of two years prior to the commencement of the divorce, or

• The husband or wife is a resident of the State of New York for a continuous period of one year and, either, the marriage took place in New York, the grounds for divorce occurred in New York, or the parties held themselves out as married in New York.

Grounds for Divorce
New York remains one of the few states in the country that requires couples to have a reason for getting a divorce.  This is called having grounds for divorce.  It is important to remember that only the spouse that is not at fault may utilize the grounds for divorce.  The spouse that commits any of the following grounds cannot use them as a way to acquire a divorce from a blameless spouse.

• Adultery - Your spouse must have engaged in an extramarital affair in order for you to have grounds for a divorce.  Adultery is a particularly difficult grounds to prove as you will not be allowed to testify against your spouse.  You must have a witness that is willing to testify against your spouse.  The services of a private investigator is often used in order to prove circumstantially that your spouse had the intent, inclination, and opportunity to engage in extramarital sex.

• Abandonment - Your spouse must have abandoned the marital home for a period of no less than a year without any intent to return or your spouse must have abandoned the marriage for a similar period of time by refusing to have sexual relations with you without justification.

• Cruel and Inhuman Treatment - Your spouse must have committed acts that make it unsafe for you to remain in the marital union.  The treatment must have serious effect on your physical or mental health.

• Imprisonment - Your spouse must be in physically incarcerated in prison for three or more consecutive years before you have grounds for a divorce.

• Separation Agreement - Your spouse and you must live apart for a year under a separation agreement to have grounds for a divorce.  A separation agreement is a detailed written document carefully prepared by your attorneys where the parties agree to live apart for the rest of their lives.  It details the custody and support for the children, the division of property, and all other matters relating to the marital relationship.  In a year, either party may bring the separation agreement to court and convert it into a divorce judgment so long as they have meet the terms of the separation agreement.

• No-Fault Divorce - Under New York law, a couple may get a no-fault divorce if one of them has stated, under oath, that their marriage has broken down irretrievably for at least six months. Before a no-fault divorce will be granted, all issues relating to the dissolution -- including property division, spousal support, child support, and child custody and visitation -- must be resolved. This can be done in a separation agreement or by order of the judge. 

Regardless of whether your spouse consents to a divorce, you will still need the above grounds.

Equitable Distribution
Marital Property is the property jointly owned by both spouses subject to distribution upon divorce.  It includes all property and income earned by the spouses during the course of the marriage, regardless of the form that title is held.  Separate property, which will be discussed in further detail below, is held by only one of the spouses and it is not subject to equitable distribution during divorce.

Marital property includes retirement accounts, pension savings, real property purchased with marital funds, household items, automobiles, and more.

In the State of New York, professional licenses, such as doctors and lawyers, are subject to equitable distribution if the license was earned during the course of the marriage.  The analysis is based on enhanced earning capacity allowed by the professional license, with the other spouse receiving a percentage of that enhanced earning capacity upon divorce.

If an asset has been acquired during the course of the marriage, the burden is on the spouse seeking to classify it as separate property and not subject to equitable distribution.