Divorce - Frequently Asked Questions
What is a divorce?
Divorce is the final, legal ending of a marriage by court order. If you
have a divorce case in court, you may hear lawyers and court staff call
it a matrimonial action. The person who starts the divorce is called the
plaintiff, and the other spouse is called the defendant.
Where do I go to for a divorce?
The Supreme Court of the State of New York is the only court that handles
divorce cases, and a Supreme Court judge is the only person who can legally
grant a divorce. You should go to the Supreme Court in the county where
you or your spouse now live. You cannot get a divorce in Family Court.
Although Family Court cannot give you a divorce, you can go to your local
Family Court for help with child support, child custody, child visitation,
spousal support (also known as spousal maintenance), and paternity.
What is an annulment?
Unlike a divorce that ends a valid marriage, an annulment establishes that
the marriage is not legally valid, and the grounds for annulment are different
from a divorce. To get an annulment, you will need to prove ONE of the
•Bigamy: one of the parties was still married to someone else at the
time of the second marriage;
•Either spouse was incurably unable to have sexual intercourse at
the time of the marriage;
•After marriage, either spouse becomes incurably insane for five (5)
years or more. The Court may require the sane spouse to support the Marriage
between persons under 18, if the spouse under 18 wants the annulment.
The annulment will not be granted if the person under 18 freely cohabited
(had sexual relations) with the other spouse after turning 18.
•Spouse is unable to understand the nature, effect and consequences
of marriage because of mental incapacity.
•Spouse agreed to marry as a result of force or duress by the other.
•Fraud (most common ground): the consent to marry was obtained by
fraud that would have deceived an ordinarily prudent person and was material
to obtaining the other party's consent. The fraud must go to the essence
of the marriage contract. Concealment of a material fact may constitute
fraud. Sexual intercourse evidencing forgiveness is an absolute defense.
To learn about religious annulment, you should consult the religious faith
that performed the marriage.
Annulment is defined in Domestic Relations Law §140. If you would
like an annulment, you should seriously consider speaking to a lawyer.
The court does not provide forms for annulment.
How do I start a divorce case?
You will need to buy an Index Number at the County Clerk's Office and
file a Summons with Notice or a Summons and Verified Complaint (which
has the reasons for the divorce). Next, you will need to have another
person over the age of 18 who is not a party to the action serve your
spouse with the papers. For more information on filing fees, completing
and serving papers, placing your case on the court's calendar, and
other procedures, please carefully follow the Uncontested Divorce Forms
Do I need a lawyer to get divorced?
Because divorce law can be complicated, you should meet with a lawyer —
even if you think your divorce will be uncontested. If you and your spouse
have resolved all financial and parenting issues, and you do not have
a lawyer, you can use the free Uncontested Divorce Forms Packet from the
court. You must first read the Uncontested Divorce Forms Packet Instructions
before trying to complete the process on your own.
If you have parenting or financial issues to work out, you may want to
consider alternative dispute resolution (ADR) processes like divorce mediation
or collaborative family law. These out-of-court processes often save time
and money, reduce stress, and even improve relationships between parents
and their children after divorce. ADR may not be appropriate in cases
involving domestic violence, child abuse, or where one spouse cannot locate
the other. [see What if I cannot locate my spouse?]
What Are the Grounds for Divorce
In New York, an action for divorce may be maintained on any one of the
following grounds, as set forth in the New York Domestic Relations Law
(1) the cruel and inhuman treatment of the plaintiff by the defendant such
that the conduct of the defendant so endangers the physical or mental
well-being of the plaintiff as to render it unsafe or improper for the
plaintiff to cohabit with the defendant;
(2) the abandonment of the plaintiff by the defendant for a period of one
or more years prior to the commencement of the action;
(3) the confinement of the defendant in prison for a period of three or more
consecutive years after the marriage;
(4) the commission of an act of adultery by the defendant;
(5) the parties have lived apart pursuant to a decree or judgment of separation
for a period of one or more years after the granting of such decree or
judgment, provided the plaintiff has substantially performed all the terms
and conditions of such decree or judgment, and;
(6) the parties have lived separate and apart pursuant to a written agreement
of separation, subscribed by the parties in a form required to entitle
a deed to be recorded, for a period of one or more years after the execution
of such agreement and the plaintiff has substantially performed all the
terms and conditions of such agreement.
(7) irretrievable breakdown of a marriage.See, Domestic Relations Law section 170.
Most of the grounds set forth in the Domestic Relations Law are fault-based
grounds, with the exception of the final three grounds. The fifth and
sixth ground permits divorce where the parties have lived apart pursuant
to a decree or judgment of separation for a period of one or more years
after the granting of such decree or judgment or the parties have lived
separate and apart pursuant to a written agreement of separation, subscribed
by the parties in a form required to entitle a deed to be recorded, for
a period of one or more years after the execution of such agreement.
The final ground, irretrievable breakdown of the marriage, is the most
recent addition, and may also be considered a no-fault ground in that
it does not require the assignment of fault or blame; it merely allows
for a divorce where one of the parties expresses that the marriage has
broken down, and there is no hope for reconciliation. Simply put, the
marriage is "dead".
What if I cannot locate my spouse?
New York state law requires that the defendant in a divorce action be personally
served with the Summons with Notice or Summons and Verified Complaint.
To have your spouse served in any other way, you must get permission from
the court. You can apply for such permission by filing an application
for alternate service with the Supreme Court Clerk's Office in the
county where you filed your divorce case.