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Is There a Such Thing as Common Law Divorce?

Common law marriage is the concept of a couple living together for a certain amount of time and thereby automatically gaining status as a married couple. While some states recognize common law marriages, New York is not one of them. In New York, a couple must take measures to legally wed in a civil proceeding or church ceremony in order to achieve married status.

As couples may not simply live together for a period of time and attain a marriage in New York, a married couple also may not simply live apart for a period of time in order to attain a divorce. While some states do allow this, in New York a couple must first enter into a valid separation agreement. In fact, for a long time, divorcing after one year of legal separation was the only path New York couples could take to achieve a no-fault divorce. Since 2010, however, the state has granted divorces on no-fault grounds. Today, the following grounds for divorce in New York are accepted:

  • Irretrievable breakdown — This is the relatively new no-fault basis for divorce. The couple must allege that for at least six months prior to filing, their marriage has broken down irretrievably. They do not have to live apart for that time period.
  • Cruel or inhuman treatment — A fault-based ground that alleges physical, emotional or verbal abuse by one spouse.
  • Abandonment — A fault-based ground alleging abandonment for at least one year
  • Incarceration — A fault-based ground that is valid if one spouse is in jail or prison for three or more consecutive years
  • Adultery — A fault-based ground alleging infidelity by one spouse. Adultery can be difficult to prove in court, and requires testimony from a third party or evidence to support the allegation.
  • Divorce following legal separation — While this is closest to the concept of common law divorce, couples in Long Island and throughout New York must first obtain a legal separation agreement.

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