Jurisdiction   To commence a divorce action in New York, the first requirement is that New York must have jurisdiction over the parties involved in the divorce.  For New York to have jurisdiction, one of the following conditions must be met: Either party must have resided in New York for at least the previous two years; The marriage must have taken place in New York and at least one party must have resided in New York for the previous year; The ground for divorce must have taken place in New York and at least one party must have resided in New York for the previous year; or Both parties reside in New York and the grounds for divorce occurred in New York.

Grounds for Divorce

      New York is unusual in that it does not allow for a divorce based upon irreconcilable differences.  In most cases, to bring a divorce action in New York, one of the parties must be at fault. The following are reasons, or in legal terminology grounds, for divorce in New York:

• Cruel or inhuman treatment, such that the conduct of the defendant, the person against whom the divorce action is filed, so endangers the physical or mental well-being of the plaintiff, the person who filed the divorce action, as to render cohabitation unsafe or improper;
• Abandonment by the defendant for one year;
• Imprisonment of the defendant for three consecutive years during the marriage;
• Adultery by the defendant; and                         
• Living apart for one year pursuant to a separation decree, judgment or written agreement, with satisfactory proof of substantial performance thereof.

      If you use the grounds of cruel or inhuman treatment, several examples of such behavior must be given.  The examples must include the approximate dates and places where incidents occurred.  The incidents must not have taken place more than five years prior to commencing the divorce.  Incidents that include any form of physical abuse are valid for these grounds.  Other examples may include verbal abuse, staying out of the marital residence overnight without explanation, or threats of physical harm. A long-term marriage may require a higher degree of nonphysical abuse than a short-term marriage.

      The following is a description of the three variations of abandonment in New York:

1. Physical Abandonment:  The defendant moved out of the marital residence a year or more before the commencement of the divorce action 
2. Lock-Out:  The defendant locked the plaintiff out of the martial residence a year or more before the commencement of the divorce action
3. Constructive Abandonment:  The defendant, for no valid reason, has refused to have sexual relations with the plaintiff for a year or more before the commencement of the divorce action.

      Imprisonment is not a common ground for divorce.  It may be used by the plaintiff only if the defendant went to prison after the marriage took place and the defendant has been in prison for at least the three years immediately prior to the commencement of the divorce action.

      Although, adultery may be a common reason for divorce, it is not often used as grounds due to the high degree of proof that is required by the Court to grant a divorce on this basis.

      Living apart pursuant to a legal separation agreement is the sole ground in New York that does not require one of the parties to be at fault.  In order to make use of this ground, the husband and wife must have entered into a valid legal separation agreement at least one year prior to the commencement of the divorce action.  Also, the parties must have substantially followed the agreement, including lived apart.  Due to these requirements, many couples do not use this ground, because it adds a year and more cost to the divorce process.

      A much less common ground is a divorce based upon a court ordered legal separation.  Very few people are willing to go through the time and expense of a legal action to request that the Court provide an order of separation.  Accordingly, it is almost unheard of to base a divorce upon this ground.

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