Are you considering filing for divorce in New York? If so, you may have questions about whether you have valid grounds for divorce. New York was one of the last states to pass a no-fault divorce law, allowing couples to get divorced due to their marriage’s irreparable breakdown. Even though most couples file for no-fault divorce now, there are some benefits to filing for a fault-based divorce in New York. 

Grounds for Divorce in New York

There are seven different legal grounds for divorce in New York, including a no-fault divorce option. When a couple wants to seek a no-fault divorce, they can claim that their marriage has undergone an irretrievable breakdown for at least six months. To pursue a no-fault divorce, you will need to agree with your soon-to-be ex-spouse on how you will divide your marital property, as well as child custody issues. In a no-fault divorce, neither spouse must prove wrongdoing on the part of the other spouse. Instead, the spouse who petitions for divorce must swear under oath that an irretrievable breakdown has occurred.

Choosing a no-fault divorce can cut down on an expensive and prolonged divorce litigation process. However, when one spouse has engaged in conduct that caused the divorce, the other spouse may want to pursue a fault-based divorce. The spouse who alleges a fault-based ground for divorce must provide evidence supporting his or her allegation. Suppose the spouse petitioning for a fault-based divorce alleges adultery. In that case, the spouse will need to present evidence that an affair occurred. We will discuss each of the six fault-based grounds for divorce below.


Cruel and Inhumane Treatment

The first ground for divorce is cruel and inhumane treatment. Proving cruel and inhumane treatment can be difficult. It is not enough for you to provide evidence that you and your spouse constantly argue or do not get along. Similarly, proving that your spouse made some cruel remarks to you is not enough to prove cruel and inhumane treatment. Instead, you must provide evidence that the cruelty has risen to the level that you are physically or mentally in danger, and it is unsafe or improper for you to continue living with your spouse.



Your spouse must have abandoned you for at least one year or longer to use this ground for divorce. There are two different types of abandonment. In the first type, one spouse physically leaves the family home without any intention of returning. The second type is constructive abandonment, in which one spouse refuses to have sex with the other spouse. Additionally, when one spouse kicks another spouse out, and the spouse who is gone does not intend to return home, the grounds of abandonment will apply.



Your spouse must have been in prison for three or more consecutive years to allege imprisonment as grounds for divorce. To allege these grounds, your spouse must have been incarcerated after the beginning of your marriage. You can claim imprisonment when your spouse is currently in prison or up to five years after your spouse was released from prison.



Adultery is one of the most common grounds for divorce. You will need to sign and file a valid legal separation agreement and live apart for one year to allege the ground of adultery. The separation agreement needs to have specific requirements to be legally valid. You also need to prove that adultery occurred. Adultery includes any type of sexual conduct, such as sexual intercourse, oral sexual conduct, or anal sexual contact.


Divorce After a Legal Separation Agreement

If you and your spouse signed and filed a valid separation agreement and lived apart from each other for one year more, you can allege this as grounds for divorce. The separation agreement must have specific requirements to be legally valid in New York. You will need to prove that you and your spouse have not lived together for at least a year, according to the terms in your separation agreement. If your spouse moves back into your home, even if it is for a short period, you will not be able to use this ground for divorce.


Divorce After a Judgment of Separation

This is a rarely-used ground for divorce in New York. To use this ground, the Supreme Court of New York must draw up a judgment of separation, and you and your spouse must live apart for at least one year.


Residency Requirements For a New York Divorce

You will not be able to get a divorce in New York unless you meet the strict residency requirements. There are two ways to fulfill the residency requirements:

  • Either you or your spouse has lived in York State continuously for at least two years before you petition the court for a divorce.
  • Either you or your spouse has lived in New York state continuously for at least one year before you petition the court for divorce and you got married in New York state, you have lived in New York state as a married couple, or the grounds for the divorce occurred in New York state.
  • Both you and your spouse will be New York state residents on the day you petition the court for divorce, and the ground or grounds for divorce occurred in New York state.


Contact a Bronx Divorce Lawyer Today

Are you considering filing for divorce in the Bronx? Do you have questions about whether you need the residence requirements or whether you have valid grounds for divorce in New York? If so, attorney Jason Lutzky is here to help. He has decades of experience successfully representing clients in New York divorces. He will listen to your situation and provide you with excellent legal advice. An experienced courtroom lawyer, attorney Jason Lutzky will represent you assertively during negotiations or at trial, should your case go to court. Contact the Law Offices of Jason Lutzky today to schedule your initial consultation.