What Is No Fault Divorce in New York?

by Wayne Thomas
New York was the last state to recognize no-fault divorce.

New York was the last state to recognize no-fault divorce.

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Couples interested in pursuing a divorce in New York have the option of a no-fault divorce. In the past, both parties needed to be in full agreement and had to have lived apart for a year to avoid proving marital fault. Since 2010, a divorce may proceed under the no-fault ground that the marriage is irretrievably broken.

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No-Fault Grounds

New York was the last state to allow no-fault divorce. Before 2010, the only way to obtain a divorce without fault was to live separate and apart from your spouse for a period of a year, and to agree to the divorce and settlement terms. Now, a divorce will be granted if there is an "irretrievable breakdown" of the marriage. This can be proven by the testimony of only one spouse, combined with a waiting period of six months before filing.

Residency Requirement

To obtain a divorce in New York, the residency requirement must first be met. New York is somewhat unique in this regard, and it allows parties to prove residency in one of four ways. One method is that the parties were married in New York and either spouse was a resident of the state for at least one year before filing. Another method is that the parties were not married in the state but lived in New York at some point during the marriage, and one spouse was a resident of the state for at least one year before filing. If parties cannot meet the previous two options, residency is met if the grounds for divorce arose in New York and either your or your spouse has been living in the state for at least one year prior to filing, or both spouses are residents of the state, for any time period, on the date of filing. Finally, if either party was a New York resident for two years before filing, the residency requirement is met.

Divorce Procedure

To start a no-fault divorce in New York, you must first buy an index number from the court. This will help identify your case to the judge. Next, you must fill out a Verified Complaint and include basic information about you and your spouse, as well as the reason for divorce. File the complaint in the clerk's office in the county in which either you or your spouse resides. This document, along with a summons, must be served on the non-filing spouse by a person over the age of 18. The spouse that was served with the complaint must respond with a written answer within 20 days. The answer requires you to indicate whether you agree or disagree with the information that your spouse supplied in the complaint.

Property and Support

New York is an equitable distribution state. This means that a judge will divide marital property on the basis of what is "fair" between the parties, which may or may not be equal. A court will look at several factors, including the duration of the marriage, the health of the parties, and the foreseeable future finances of both parties. One spouse may also request an award of alimony, also known as spousal support. A judge will consider several factors in making this determination, including the ability of each party to be self-supporting, the length of the marriage, and the particular circumstances of the case and of the respective parties.