There are steps that must be completed before you can file for a divorce in New York State.
To file for a divorce in New York you must satisfy one of the following residency requirements:
The marriage ceremony was performed in New York and either of the parties was a resident of the state at the time of the commencement of the divorce action and resided continuously in New York for one year immediately before the action began; OR
The couple lived as husband and wife in New York AND one of them is a legal resident of New York and resided in this state for a continuous period of one year immediately before the start of the action; OR
The grounds for divorce occurred in New York and one spouse is a resident of New York and lived in the state for a continuous period of one year before the start of the action; OR
The grounds for divorce occurred in New York State and both spouses are New York residents at the time the action is commenced; OR
If you and your spouse were married outside of New York and you never lived together as husband and wife in this state and the grounds for divorce did not occur in this state -- either you or your spouse must presently be a resident of New York State and have resided continuously in the state for at least two years before the start of the action.
GROUNDS FOR DIVORCE
You must satisfy one of the grounds for divorce set forth in Domestic Relations Law §170.
There are six grounds for divorce in New York. In order to be granted a divorce, certain facts must be proved. Failure to prove the facts required for a divorce results in the action being dismissed.
The grounds for divorce in New York State are as follows:
1. Cruel and Inhuman Treatment. Defendant engaged in conduct that so endangered the mental and physical well-being of the Plaintiff, so as to render it unsafe or improper for the parties to cohabit (live together) as husband and wife.
The law is not precise on the definition of cruel and inhuman treatment sufficient to be granted a divorce in New York State. Each action is decided on its own merit. Verbal, sexual, physical and emotional abuse can constitute can constitute cruelty provided that the situation makes it unsafe or improper for the parties to cohabit. The Court of Appeals, however, had indicated that a marriage of long duration requires a high degree of proof to dissolve a marriage based on the grounds of cruel and inhuman treatment.
2. Abandonment. That commencing on or about , and continuing for a period of more than one (1) year immediately prior to commencement of this action, the Defendant left the marital residence of the parties located at , and did not return. Such absence was without cause or justification, and was without Plaintiff’s consent. The abandonment of the plaintiff by the defendant for a period of one or more years.
Actual abandonment consists of the leaving of the marital home by a spouse without cause or justification. If one of the spouse leaves the marital home with the consent of the other, there is no abandonment. Constructive abandonment is the refusal to engage in sexual relations with the other without cause or justification. If both spouses consent to not engage in sexual relations, there is no constructive abandonment.
3. Confinement to Prison. That after the marriage of Plaintiff and Defendant, Defendant was confined in prison for a period of three or more consecutive years.
4. Adultery. An act of sexual or deviate sexual intercourse, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of plaintiff and defendant.
Adultery cannot be proved by the confession one spouse alone. A spouse also cannot prove adultery by their direct testimony.
There are 4 affirmative defenses to a divorce action based on adultery. If proved, an affirmative defense results in the dismissal of the divorce action. The 4 affirmative defenses are (1) procurement (encouragement of adultery) or connivance (consent to adultery); (2) forgiveness (sexual relations after the discovery of adultery results in forgiveness); (3) statute of limitations (action must be started within 5 years of discovery of the adultery); and (4) recrimination (if the other party is also guilty of adultery, a divorce will not be granted).
5. Living Separate and Apart Pursuant to a Separation Decree or Judgment of Separation. The couple have been granted a Separation Decree or Judgment of Separation by the Court and have lived apart for one or more years after the granting of such decree or judgment.
6. Living Separate and Apart Pursuant to a Separation Agreement. The couple have entered into a Separation Agreement and have lived apart for one or more years after such an agreement have been entered into.
SERVING THE SUMMONS AND COMPLAINT or SUMMONS WITH NOTICE
You must then make sure that the court has jurisdiction over your spouse (the Defendant) by arranging for him or her to be served with a Summons and Complaint or a with a Summons With Notice.
Your divorce action begins when you purchase an index number and file the summons with the County Clerk's office.
Your spouse must then be served with a copy of the summons by being personally given the document. It is important to know where your spouse is located. If he or she lives in New York State, the server must be a resident of New York State, over eighteen years of age, and CANNOT be a party to the action (this means you may not serve your spouse with the summons).
If your spouse is living outside of New York State you must still ensure that he or she is personally served with the summons. If you use a non-New York State resident to serve your spouse outside of the State, the server must be a qualified attorney, solicitor or the equivalent in that state or nation. Otherwise the person must be authorized to serve papers pursuant to the laws of that state.
The person that serves the papers must fill out a notarized affidavit of service as proof that the server did indeed serve the papers.