New York Divorce FAQ’s – Miscellaneous

This is about miscellaneous issues for divorce in New York, including residence requirements, grounds for divorce, common law marriage, annulment, legal separation, and any requirement for parent training.

This information is from Steven Abel, theDivorceInfo Network Lawyer for New York. Click here for information on him.

What are the requirements for residence?

In order to get divorced in New York, you must meet one of the following requirements. A. One (or both) of you has lived in New York for two years just before filing for divorce; OR B. One (or both) of you has lived in New York for one year just before filing for divorce, AND EITHER 1. Your were married in New York; or 2. You both lived here as husband & wife in the past. OR C. One (not both) of you lived in New York for 1 year just before filing for divorce AND the grounds for divorce occurred in New York. OR D. Both of you now live in New York AND the grounds for divorce occurred in New York (no minimum time in this situation).

What are the grounds for divorce?

To get divorced in New York, you need grounds, which means one of the legal reasons for divorce recognized in the Domestic Relations Law. (Unlike in many states, irreconcilable differences are not grounds for divorce here.) Essentially, New York has six grounds for divorce. Stated briefly, the six grounds are: 1. Abandonment for a year or more (actual or sexual). 2. Cruel and Inhuman treatment. 3. Living separate and apart pursuant to a written agreement for a year. 4. Living separate and apart pursuant to a separation judgment for a year. 5. Adultery. 6. Imprisonment for three years or more. Note: New York’s only true no-fault divorce ground is living apart under a signed separation agreement for one year.

Is there such a thing as common law marriage?

Common Law Marriage is defined as a marriage in which the parties did not obtain a license or go through a recognized ceremony, but lived together as married. New York does not recognize common law marriage from living together only in New York State. But, you can have a common law marriage recognized in New York if: a. You were common law married in a state that permits common law marriage and then move to New York, or B. You have lived together in New York and traveled to and cohabited in one of the other states such as Pennsylvania, South Carolina or Colorado, which recognizes common law marriage, while “holding yourselves out” as being married, meaning that you acted as though you were married. As little as an overnight trip to as common law state can be enough to qualify for recognition of common law marriage in New York.

How does annulment work?

Annulment is defined as the legal process which declares that a marriage never existed. If your marriage was prohibited – not valid right from the start – then you may ask the court to annul your marriage, declare it void, that it never happened. A marriage may be annulled because one of you was already married, you are siblings or close relatives, you were underage, the marriage was never consummated, or was based on fraud, or one of you was mentally retarded or mentally ill, or you were forced into the marriage.

Is there such a thing as legal separation? If so, how does it work?

Yes, but it is very rarely used. Legal Separation by the Court is the same as a divorce except that neither party is free to re-marry, and the right to inherit is not terminated except by written agreement. At that point you are treated as separate persons. This is sometimes called a “Catholic divorce” because it allows Roman Catholics to use the courts without violating their religious beliefs. Much more common is a Separation by Agreement, but this is not officially called a “Legal Separation,” although people often use this term incorrectly. Signing a separation agreement is a way to separate, to divide property, to end mutual responsibility for each other’s support and debts except as agreed, and to take a good look at the relationship. Afterward divorce is one step away.

Do parents of minor children have to go through parent training? If so, how much does it cost, and how long does it take?

The rules are presently changing, with parent education on its way to becoming mandatory. This will start on a county by county approach. The usual programs are 8 hours or less, and fees are usually less than $25.

Other issues in New York: