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Do You Have to Be Separated Before Filing for Divorce in New York State?

In New York, you need legal grounds — reasons recognized by the state’s divorce laws — to get a divorce. There are two categories of legal grounds in New York State: fault-based and no fault.

No-fault grounds for divorce

In New York, a divorce can be granted on no-fault grounds.  In no-fault divorce, the person who is filing claims that the marriage has broken down irretrievably (“irreconcilable differences“) for at least 6 months. It is not necessary that the couple has been living apart for six months, or at all, as long as one party claims the marriage is no longer working.

Fault Grounds for divorce

Sometimes to gain advantage in custody or spousal support dispute, a person may choose to file for divorce on fault-based grounds. In New York State these grounds are:

  • Cruel and inhuman treatment – this includes both physical and emotional abuse
  • Abandonment – this can be either physical abandonment where your spouse moved out or locked you out of your home for at least one year, or constructive abandonment  where you spouse has refused sexual relations for at least one year
  • Imprisonment – this ground is relevant where one spouse has been imprisoned for three consecutive years, and may be exercised up to five years of the spouse’s release from prison
  • Adultery – sexual relations with another party, which must be proved

Divorce after formal separation

If there is a formal written or court-ordered separation, divorce can also be granted after one year of living separately with no further grounds cited.

Divorces are complicated and each case is unique. If you are contemplating a divorce, a consultation with a knowledgeable divorce attorney can help you decide which grounds would be appropriate and most advantageous in your circumstances.

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