Where to File for Divorce

By |2019-09-03T23:37:13-05:00January 5th, 2018|

Where to file for divorceLike any other state, you need to establish residency if you are seeking a divorce in that particular jurisdiction. If you wish to get divorced in New York, you have to meet the state’s residency requirements before filing in court. These requirements include any one of the following:

  1. You were married in New York and either you or your spouse has been a resident here for one continuous year immediately preceding initiation of the action for divorce.
  2. You and your spouse resided in New York as husband and wife and one of you was a New York resident when the divorce action commenced and has been a resident for a period of one continuous year immediately preceding the divorce action.
  3. The grounds for the divorce occurred in New York and either you or your spouse was a New York resident for at least one year before the divorce action commenced.
  4. Either you or your spouse was a resident of New York for a continuous period of 2- years immediately preceding the commencement of the divorce action.

You can file the divorce action in the court of whichever county either of you lives. It does not matter if either one of you is not a New York state resident for you to file for divorce here.

What are the Grounds for Divorce?

You have the option in New York of a no-fault divorce or one where you allege certain grounds and then have to prove them. A no-fault divorce is much easier to file since all you do is allege that there has been an irretrievable breakdown of the marriage for 6-months.

You also have the option of alleging certain grounds. Spouses who do not want a divorce can fight it by disproving the grounds alleged, though in most cases a court will grant it nonetheless based on no-fault grounds.

Otherwise, the following 7 grounds or basis for a divorce include:

  1. Cruel and inhuman treatment: you have to allege certain acts of cruelty and when they occurred over the past 5-years of the marriage. The conduct must have been so severe that you reasonably believed you were in physical or mental danger and that living any longer with your spouse would be unsafe. This can be sexual, physical, verbal, emotional or economic abuse.
  2. Abandonment: either your spouse has left the home and not returned for at least one year or your spouse has said or strongly implied that he or she will no longer engage in sexual relations with you (constructive abandonment).
  3. Imprisonment: your spouse was imprisoned during the marriage and for at least 3 consecutive years. You can use this as grounds for up to 5-years after your spouse was released.
  4. Adultery: you need testimony from a third person to prove your spouse engaged in an adulterous relationship during the marriage.
  5. After a legal separation: if you signed a legal separation agreement with specific provisions included and lived apart for one year, you can allege this as a basis.
  6. After a judgment of separation: if the court granted a judgment of separation and you lived apart for one year, you can allege this as grounds for divorce.
  7. Irretrievable breakdown: allege that the irretrievable breakdown has been for at least 6-months. This is the no-fault basis.

If you are using no-fault, then all issues regarding marital property, custody, and support of the minor children will have to agree upon before the court will grant the divorce. All divorce actions are commenced in the Supreme Court of the particular county that has jurisdiction in your case.by filing your forms with the county clerk’s office. This is the state’s highest trial level court. It does not matter if your divorce is contested or not regarding which court to file in.

Foreign Divorce Decrees

If you received a divorce in a foreign country, you will want the New York courts to recognize it. In some cases, you and your spouse were married in a country which was not the domicile of either of you. To get a New York court to validate it, you must show:

  • You both received adequate notice
  • You or your spouse made a personal appearance in the court that had jurisdiction to render the divorce
  • The spouse who is not requesting the divorce made either a personal appearance in that foreign court or signed a document submitting to the court’s authority to terminate the marriage
  • Obtain a certified copy of the foreign divorce decree, have it authenticated in the US, and be sure to have a certified English translation of the decree if necessary

What if My Spouse is Not a US Citizen?

The rules for obtaining a divorce in New York are the same if your spouse is not a U.S. citizen. However, if your spouse is no longer in the US, you do have to follow the rules for service of process in that foreign country.

For the foreign divorce decree to be valid in a New York court, the service must be valid in the country where you are serving the divorce documents. Depending on the country, you may be able to serve your spouse by publication, by mail, or by use of a designated agent.

Also, if you are not a US citizen, you can still file for divorce in New York so long as the residency requirements are met. Your citizenship status is not relevant.

Do You Need a New York Lawyer to File for Divorce?

If your case is uncontested and there are no children or substantial marital assets, then most people can file without an attorney at all. However, you may still want to use an attorney to represent you to ensure all proper forms are used and completed and so your divorce agreement will be court-approved.

If you wish to use an attorney, he or she must be licensed in the State of New York to represent you in court.


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