Although, at this time, New York does not allow same sex marriage, it does allow same sex divorce.

To be eligible for a same sex divorce in New York, the couple must have been married in a jurisdiction that allows same sex marriage. Further, New York must have jurisdiction over the matter. For New York to have jurisdiction, at least one of the following conditions must be met:

• Either party must have resided in New York for at least the previous two years;
• The ground for divorce must have taken place in New York and at least one party must have resided in New York for the previous year; or
• Both parties reside in New York and the ground for divorce occurred in New York.
  

Just as in the case for a hetersexual married couple, New York does not allow no-fault divorces or divorces based upon irreconcilable differences. The parties cannot just say that they want a divorce. To obtain a New York divorce, the party seeking a divorce must have a reason, or in legal jargon, a ground, that New York law recognizes as a valid basis for a divorce.

The closest thing that New York has to a no-fault divorce is a divorce based upon a legal separation agreement. The spouses must have lived apart for at least a year after signing a written legal separation agreement. Living apart for at least a year without such a written agreement does not provide a ground for a New York divorce. The legal separation does not begin until the parties have signed the legal separation agreement and are living apart. Many people who want to get divorced do not want to spend extra money on a legal separation or to wait a year to start a divorce. Such people look to other grounds for a divorce.

All other grounds for divorce in New York require that the spouse who begins the divorce establish wrongful behavior by the other spouse.

The most common ground for divorce in New York is abandonment. The spouse who left the marital residence must be gone for at least one year. In addition to actual abandonment, there are two other types of abandonment. One type is called “lock-out,” which, as the name implies, occurs when the wrongdoer has locked the innocent spouse out of the marital home for at least the past year. The other variation is constructive abandonment, which occurs when the wrongdoer, without valid reason, has refused to have sexual relations with the other spouse.

Another widely used ground for a New York divorce is inhuman treatment, which includes mental cruelty. The acts of inhuman treatment must have taken place during the marriage and within the previous five years. The acts of inhuman treatment must have been so serious that it would be unsafe or improper for the innocent spouse to continue to live with the wrongdoer. Any type of physical abuse would qualify as inhuman treatment. Other examples of inhuman treatment include unexplained absence from the marital residence overnight, gambling household money, spending household money on drugs, falsely accusing the innocent spouse of an affair, physical abuse, and verbal abuse.

A long term marriage or a marriage with minor children requires a higher threshold of abuse over a short term marriage or a marriage without children. However, physical abuse will meet the threshold for inhuman treatment for any marriage. The party bringing a divorce action based upon inhuman treatment must provide specific information concerning the incidents, such as dates, places and a description of each incident. If the incident was verbal, then the words spoken must be included in the divorce papers. Witness statements and police reports are useful when relying upon this ground.

Although the following are valid grounds for divorce in New York, they are not commonly used.

In New York, adultery is a ground for divorce, but requirements of proof are strict. Evidence from a third party is required. The following are defenses to adultery: the complaining party encouraged or consented to the adultery, forgave (resumed sexual relation after knowing about the adultery) or also committed adultery, or five or more years have passed since the adultery occurred. Due to the difficulty of proving adultery and the defenses that are available, this ground is seldom used.

Another ground for divorce in New York is imprisonment for the past three years. Only the party not in prison may bring a divorce action on this ground against the incarcerated spouse. This ground cannot be used if the party in prison was already incarcerated when the marriage took place.

Another ground for divorce in New York is a judgment of legal separation. The party seeking the divorce must first sue the other spouse for a legal separation and obtain a judgment of separation. Since very few people want to go through the expense and time to obtain a judgment of separation, this ground is seldom used.

Our fee for a divorce on consent without children, property or financial issues is $750. The court fees are $343. Accordingly, the total fee is $1,093.

If there are children younger than 21 years of age, the parties to the divorce agree to the divorce, custody, child support and visitation, and there is no property or other financial issues, our fee is $1,000. The court fees are $343. Accordingly, the total fee is $1,343.

If there are children and one or more of the following items: real estate, other assets, or financial issues, and the parties agree to divorce and how to settle these other issues, our fee is $1,250. The court fees are $378. Accordingly, the total fee is $1,628.

We also handle divorce by publication. A divorce by publication is done when you don’t know where your spouse is located. We also are experienced with contested divorces. A divorce is considered contested when you and your spouse either don’t agree to divorce or how to resolves issues of the marriage such as custody, visitation, child support, spousal maintenance or a division of assets. Call us at (718) 625-0800 to schedule a free consultation. During the free consultation, we will inform you of your options and our fees.