Frequently Asked Questions

A FIRM DEVOTED ENTIRELY TO DIVORCE AND FAMILY LAW

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(Retainers as low as $2,000 and hourly rates as low as $245 on select cases)

ANSWERS TO FREQUENTLY ASKED QUESTIONS

How long does a divorce take in the state of new york, and exactly what are the procedures starting from the day i walk into a lawyer’s office to the day i receive everything to which i am entitled?

The initial consultation will either provide you with a wealth of general information and a handshake, whereby I wish you well, or it will result in you retaining the undersigned firm. If you retain the undersigned firm, be prepared to sign a retainer and give us a check, money order or credit card. All major credit cards are accepted.

What is a retainer?

A retainer is an agreement between the law firm and the client. The retainer for divorces (unless it is an absolutely uncontested divorce) bills at an hourly rate. The average retainer involves 10 hours of legal service, upfront, together with expenses for filing and service of process. The minimum retainer is approximately $2,500. At that price, you have just bought ten (10) hours worth of legal services.

After the retainer, there are several ways a divorce can be started:

1. A Separation Agreement;
2. A Summons with Notice;
3. A Summons with Verified Complaint;
4. An Order to Show Cause for emergency relief; or
5. Family Court Petitions followed by items 1-4

The Summons with Notice can be generated immediately. The grounds of divorce are listed elsewhere in this website. In general, the grounds of divorce are going to be: Constructive Abandonment; Abandonment; Cruel and Inhuman Treatment; Adultery; Imprisonment; Insanity; or Living Separate and Apart for more than a year. About 99% of all divorces end up with Constructive Abandonment as the ground for eventual divorce. Quite simply, this means no sexual relations for one year prior to the divorce. However, it is often not true that this is how most all divorces are prosecuted.

SEPARATION AGREEMENTS

Separation Agreements can be a prelude to a divorce. In general, the law provides that if you prepare a Separation Agreement and file it with the County Clerk's office one year later, it can be turned into a divorce via a conversion. This is not often recommended. Quite simply, I will charge you twice. How is that for honesty? What happens is a man and a woman show up and enter into a 40-page agreement (depending upon the extent of their assets and the complexity of their marital situation) and they legally separate. From that minute on, they are separated by this agreement. In one year, a divorce must be started and there will be 15 documents filed at the Court (a litany of forms that are needed for an uncontested divorce) and a divorce Judgment will be granted on the exact basis and grounds set forth in the Separation Agreement. This rarely occurs.

The reason this rarely occurs is that as soon as the Separation Agreement is signed, there are many promises that one party has made to the other. Additionally, each party can receive income or assets (depending on how the Agreement is worded) and the other party will not share in this income or the assets. It is my experience and opinion that on 90% or better of these cases, that one party is unhappy with the Agreement within one year of the Agreement being signed. This causes challenges to the Separation Agreement. Quite simply, after the Agreement is signed, one person is going to be living better than the other and the person who got the "short end of the stick" will most likely, in my humble opinion, resort to challenging the Separation Agreement and seek additional relief or money at the time the divorce is contemplated. If you are thinking of a Separation Agreement, be aware of the following: Why do you want to separate one year before you get a divorce? Why not just divorce now? One of the best answers to this question is health insurance. If you are contemplating a Separation Agreement, we will gladly provide you with an airtight Separation Agreement. We have been doing Separation Agreements for many years and have done scores of Separation Agreements. All of our Separation Agreements have been upheld and none of them have been effectively challenged in Courts.

Additionally, our Post-Matrimonial (a pre-nup that happens after the marriage) as well as our Prenuptial Agreements have never been successfully challenged. However, they have been challenged. Anyone can challenge an Agreement and this will cost money to defend the challenge. If the Agreement says whoever challenges it and loses pays the other side’s attorneys' fees, this is fine. However, that happens after we win the case and we need to be paid throughout. Therefore, if we prepare a Separation Agreement for you and then 9, 10, 11 even 12 months later your spouse decides it was not fair or that he or she wants more, he or she will challenge the Separation Agreement. We will then aggressively defend the Separation Agreement. However, until we win the case we will ask you for our reasonable hourly rate. That must be paid throughout. After the case is won, we will most likely receive a Judgment, which forces the other side to pay your fees (which have already been paid). As you can see, you will be paying fees for several months to enforce an Agreement that everybody signed. Quite frankly, spouses do not always live up to Agreements they sign. Unless there is a final divorce, there is always an opportunity to challenge it within the year. In addition, the divorce occurs one year or so after the Separation Agreement is signed. Based on the fact that only the Agreement was signed (1 of the 15 documents needed for a divorce), the parties then have to sign additional documents; lawyers have to get involved again, and it is not as easy as you would think if there has been any change in circumstances since the Agreement has been signed. For example, if an Agreement was signed for a certain amount of support or a certain amount of equitable distribution or the value of a house has increased; a spouse has lost their job; health insurance no longer becomes available; or one of the children wants to live with the other spouse, this will be a problem. It will only be a problem if the parties do not live up to their Agreement. However, I can tell you from personal experience that people who are separating can agree to something on one day and disagree to the very same thing 11 months later. Be careful with Separation Agreements. Contact me personally and I will discuss this matter with you and provide you with a free consultation.

SUMMONS WITH NOTICE

The Summons with Notice is generated and then filed with the County Clerk's Office. This does not require your signature. The County Clerk accepts it and receives a check for $210 immediately. Thereafter, there are 120 days to serve the Summons with Notice. We often serve them immediately. Service on a spouse will be carried out by a professional process server and an Affidavit of Service will be prepared then filed in the County Clerk's office. Your spouse then has 20 to 30 days to answer. When the spouse answers, the issue is "joined" or as we would like to say, "the ball is in play".

SUMMONS WITH VERIFIED COMPLAINT

A Summons with Verified Complaint is more elaborate than the Summons with Notice. It actually states the allegations set forth in the Verified Complaint. There are many reasons for an attorney to do a Summons with Notice and/or a Summons with Verified Complaint. For example, if we start with a Summons with Notice, we later have to prepare a Verified Complaint. If you believe your husband/wife will be represented by an attorney, we will most likely start with a Summons with Notice and later supplement with a Complaint. This way, we can negotiate the grounds of the Complaint and possibly do it in a less costly manner. If your spouse cannot be found or otherwise be represented by an attorney, we would want to start immediately with the Summons and Verified Complaint so that only one service of process is needed by a professional process server. If your spouse has retained an attorney, we do not have to use a process server to serve the Verified Complaint.

ORDER TO SHOW CAUSE

The Order to Show Cause is a vehicle whereby we receive ex-parte relief immediately. An Order to Show Cause is an emergency application. The Order to Show Cause is a blank Order that requests emergency relief such as: exclusive use and occupancy of the house; a Temporary Restraining Order; immediate custody of the child and/or children; restraint on bank accounts; Temporary Restraining Order preventing assets from being transferred; maintenance and alimony; payment of bills from your spouse; payment of child support immediately from your spouse; payment of the mortgage and carrying charges from your spouse as well as many other issues. The Court will read the blank Order that we provide together with the Summons with Notice and/or the Summons with Verified Complaint and an Affidavit (your statement as to why you need an Emergency Order); and our Affirmation showing the legal basis for the Order. The Court will then sign the Order and direct (grant) the above relief or reject it. If the Judge grants the above relief, it is done so without hearing your spouse's side of the story. It will then be incumbent upon us to immediately serve the Order to Show Cause upon your spouse and have him or her hire an attorney and tell the Judge why the relief should or should not be granted. This is a very aggressive way to start a lawsuit. It "front loads" all of the work and at this point, the ball is certainly in play.

PETITIONS IN FAMILY COURT PRIOR TO THE DIVORCE

There are three types of Petitions in Family Court (there are actually many, but these three are the most common in my experience) that can or may be made. Petitions are as follows:

1. Custody and Visitation;
2. Support; and
3. Order of Protection.

With respect to Custody and Visitation, this is not a wise idea to do it in Family Court prior to coming to Supreme Court for a divorce. There are many reasons for that, but, quite simply, it is only a good idea to start it in Family Court if the custody is a simple matter. For example, if you are a stay-at-home mom and you want to make sure that you have the custodial label, do it in Family Court. If custody is going to be a problem or highly contested, do it in Supreme Court. Divorces are done in Supreme Court, and Family Court is for people who were never married; previously married; or are still married but wish to have the issues of custody and support handled there.

In Family Court, it is possible to get a Law Guardian for free or at panel rates. Lately, the pendulum is swinging to the other side. What is happening is that people have to pay for Law Guardians at regular rates, even in Family Court. A Law Guardian is a lawyer appointed for the children. It is a lawyer appointed by the Judge and it is the lawyer's job to represent the best interests of the children, as well as the children’s wishes. This is a fine line. For example, after 14 years of age children can often express their own wishes and the Courts will actually bend over backwards to give the children what they want. Incredible. In any event, sometimes a child does not want what is best for him or herself. This is often the case when a child seeks to live with the parent who has a "no rules" or "relaxed rules" household. The Law Guardian threads a fine line between advocating what the child wants and/or what is in the best interest of the child. When children are over the age of 14, the Law Guardian's job is especially precarious. Courts will listen to anyone who is mature, especially if they are over the age of 14. Children over the age of 16 can live with whomever they want, so long as it is not clearly detrimental to their interest.

In the Supreme Court, the Law Guardian is often compounded with forensics (a psychiatrist or psychologist) to assist the Court in connection with their determinations of custody. In Family Court, there are also forensics. It is usually not a good idea to start a custody battle in Family Court if a divorce is going to ensue. It is better to do it in a divorce and this can be done by Order to Show Cause or by a simple Summons with Notice and/or Summons with Complaint. Later, at the Preliminary Conference, a Law Guardian and a forensic will be appointed. In the Supreme Court, Law Guardians are of a much higher caliber and there is much more attention to the parties and the children. This is my experience, and many people may disagree with this. Nevertheless, my experience is tried and true and so are my cases.

With respect to support, the Family Court can be a way to start a support proceeding immediately prior to divorce. If you have moved out of the house or your spouse has moved out of the house and you need support for yourself and/or your children, the Family Court may be the place to do it prior to the divorce. Be careful here. I usually obtain a greater amount of support in Supreme Court than in Family Court. However, I must advise you that it will take much less time to get child support and/or maintenance from Family Court. Indeed, it can be done immediately. If the Petition is filed and served timely, on the first Court appearance the Family Court will ask how much the spouse is making and make an Order of Support granting one spouse support from the other and/or granting the children support from the other spouse. This is as good as it gets. It is speedy and it is subject to reallocation after Financial Affidavits are prepared. In any event, the Supreme Court is a better vehicle to obtain support, but it takes much longer. It can be done by Order to Show Cause, but it may take as long as 60 days or more. It will be retroactive to the date filed, whether it is in Supreme Court or in Family Court. In Supreme Court, not only can we get you support but we can get you maintenance, and, most importantly, carrying charges for things such as; all utilities; mortgage; car bills; health insurance; life insurance; and restraining orders against the transfer and hypothecation of assets.

Restraining Orders

With respect to Temporary Restraining Orders, if there is family violence, the Family Court can get you a Restraining Order immediately, ex-parte. Ex-parte means without the other side having anything to say about it in the first few days. All that is required is for you to come to my office and we will discuss this with you. We can get an immediate Temporary Restraining Order, whereby one spouse is actually thrown out of his or her own house. In the best-case scenario, Temporary Restraining Orders have what is called a "Stay-Away Provision". A Stay Away Provision says that a spouse must stay away from the children and/or the other spouse. The lesser Restraining Order will say that it is a "no molest harass or annoy" Restraining Order. These Restraining Orders simply tell one spouse that if the spouse molests, annoys, threatens, or harms the other spouse, they violating spouse will be arrested. They are not as powerful. These types of Restraining Orders simply reinstate the rights that everybody already has. If your spouse is hitting you, he or she will be arrested. This happens with or without a Restraining Order.

Family Court Dos And Do Nots

In general, do not go to Court alone under any circumstances whatsoever. Contact me immediately if you are going to step one foot inside a Court complex. No one should be in a Court system without a lawyer. You will get much more respect if you show up with a lawyer, no matter what you are doing. You will get the most respect if you show up with the undersigned. We are well-known and widely recognized. Whoever your Judge is and whatever type of case you have, we have done it and we are familiar. Showing up in Court with our firm representing you shows the world that you are responsible and that you care about your case.

What happens after a divorce action is started?

If we prepare your divorce action and file it (whether by Summons with Notice or by Summons and Complaint, by Order to Show Cause or otherwise), we have a certain amount of time to serve it. If we file an Order to Show Cause, the Judge tells us how long we have to serve it. It must be served by a process server within only a few days if it is by Order to Show Cause. If the action is started by a Summons with Notice or a Summons with Verified Complaint, we have 120 days to personally serve your spouse. If we cannot find your spouse, we can make an application to serve by publication. Nevertheless, our process servers and investigators always find your spouse.

Once an action is served, what happens next?

If you are served with an Action for Divorce, Order to Show Cause or, heaven forbid, any Family Court papers, contact our office immediately. Do not pass go. Do not think about it, hire a lawyer immediately. If we have started this lawsuit on your behalf, your spouse must hire a lawyer. If the spouse does not want to hire a lawyer, the process will actually be more difficult for us. We will spend most of our time explaining to your spouse the right to hire a lawyer and explaining the remedies and rights available, as we represent you and will be enforcing your rights to the fullest, without any regard for your spouse.

There are exceptions to this rule. One is mediation, and the other is non-spouses. It is not necessary to serve a spouse in Family Court, and service can be made on a co-parent or another individual. Additionally, there are issues that can be mediated.

What about mediation?

If we are going to mediate, we make it clear that we do not represent either party and if the mediation is unsuccessful, we cannot represent either party in a divorce. If the spouses cannot agree to one single issue, the result will be a complete breakdown of the negotiations, with both spouses leaving the mediation table and hiring lawyers.

Are divorces winnable?

Yes they are. If the children are in a safe environment, free from emotional and physical abuse, and both parties are able to move on with their lives and pursue happiness elsewhere, that would be a very successful divorce. In our experience, we have seen hundreds and hundreds of satisfied clients a year or two after their divorce enjoying their lives free from the entanglements of marriage. Many of our clients feel that they should have divorced earlier. Please understand that when clients comes through our doors, they are not happy with their marriage. We believe in marriage whole-heartedly, and it is a commitment that should be upheld. Spouses are to be loved and cherished. We usually only see the worst. By the time clients walk through our door, they have already moved on in their minds and/or their spouse has moved on. We have rarely seen a divorce occur where the parties truly love each other. When there is no more love, and when the relationship becomes untenable; unsafe; unhealthy; or otherwise, unmanageable, divorce is a solution to the problem. It is often better to take action if you are unhappy and after you have tried everything else rather than to remain unhappy. We urge counseling; we urge couples to stay together; and we urge our clients to remember why they got married in the first place. Unfortunately, we rarely see clients reconciling and remaining with their spouses for long periods of time. On the other hand, it is very common for us to see clients who have been divorced and who are doing much better in their new lives, and who, in our opinion, seem happier; more well-adjusted; and, in many cases, better parents.

When is an answer made?

After a lawsuit (Summons with Notice; Summons with Complaint; Order to Show Cause; or even a Family Court Petition) is commenced, it is then served. After a party has been served, he or she must answer. Some Answers are more complicated than others. For example, if it is a Summons with Notice, the Answer is simply a Notice of Appearance from an attorney demanding a Complaint. If is it a Summons with Verified Complaint, the Answer will then be a Verified Answer together with, most likely a Counter-Claim. If it is an Order to Show Cause, there must be many allegations refuted and often a Cross-Motion is made. The Order to Show Cause may be seeking Temporary Restraining Orders and immediate relief. The way to answer would be to deny the allegations set forth in the form of a sworn statement or Affidavit (the client's side of the story). With respect to the Family Court Petitions, they should be answered. Some Family Court Petitions do not have to be answered until the Court date and can be answered in person. Never appear in Court (Family Court, District Court, Supreme Court or otherwise) without a lawyer. You will always do better if you appear represented by Bryan L. Salamone & Associates, P.C.

What happens after the answer is made?

In the usual scenario in connection with a Supreme Court divorce, an Answer is interposed and the issue is "joined." At that point, there may be no Judge assigned to the matter. The Judge is only assigned to the matter in the case of an Order to Show Cause. If it is a Family Court matter, a Hearing Examiner, Judge, or Special Referee has already been assigned. However, with the regular (garden variety) divorce, no Judge has been assigned. At this point, if the action has been started, an Answer has been made and a Request for Judicial Intervention should be prepared and served. This is a form under New York Codes Rules and Regulations Section 202. The form must be filed together with a check for $95 made payable to the County Clerk. The form will most likely Request a Preliminary Conference. This should be done within 45 days of the Answer in a divorce. A Preliminary Conference is a good way to get the case onto the Court's system so that a timeframe can be set for the eventual resolution of the matter.

What happens at a preliminary conference?

This is often a very uncomfortable situation for clients. Preliminary Conferences are usually only for divorce cases, and they occur after the lawsuit has started and the issue has been joined. During the Preliminary Conference, the clients rarely see the Judge. The attorneys show up at various time intervals, discuss the case, and fill out what is called a Preliminary Conference Order. The Preliminary Conference Order is a Stipulation/Order, which controls the timeframe for the entire case. For example, the average Preliminary Conference Order lists which issues have and have not been resolved. The issues set forth in the average Preliminary Conference Order are as follows: fault; custody; support; equitable distribution; forensic; law guardian or grounds. These issues are usually marked unresolved. With respect to forensics and Law Guardians, they are often reserved.

The most important part of the Preliminary Conference is the discovery and the deadlines for various exchanges of financial information. Prior to the Preliminary Conference, a Statement of Net Worth must be prepared, signed, and filed by each party. The Statement of Net Worth is a burdensome financial statement that is often 20 pages long and must be prepared by the clients. Clients prepare the Statement of Net Worth and submit it to their attorneys together with 2 years of tax returns; W2's; and recent pay stubs. It is our practice to prepare a final and professional copy and see it prior to or at the Preliminary Conference.

A Statement of Net Worth is needed in all contested divorce matters. Once a Statement of Net Worth is exchanged, the Preliminary Conference will schedule other discovery as follows: Interrogatories; Notice for Discovery and Inspection; Notice for Examination Before Trial; Appraisals and Experts; an end for discovery and Note of Issue date. With respect to Interrogatories and Notice for Discovery and Inspection, these are very large and burdensome discovery demands. Interrogatories are over 50 pages long (in many cases) and they will ask every single question conceivable. The party who answers the Interrogatories must prepare a written response and sign it as the truth. It is our practice to serve Interrogatories and to respond to Interrogatories in a timely fashion. A Notice for Discovery and Inspection seeks an incredible amount of financial information from the other side. It is our practice to serve and respond to such demands. For example, when we are representing a spouse, we will serve the other spouse a demand for five years worth of bank statements; loans; proof of income; investments; retirement accounts; etc. This makes sure that we have a full and complete financial picture of the parties’ marriage so that we can effectively represent our client. It is our practice to assist our clients in responding to these requests when they are made from the opposing side.

With respect to Examinations Before Trial (depositions), this is a question-and-answer period that occurs before a Court Reporter in an informal setting. It is during that time that we ask our clients to pose every question conceivable concerning finances that we could not determine based on the answers to the Interrogatories or the Notice for Discovery and Inspection. It is also a time for us to represent our client and object to any improper question posed by the other side. Once again, this is an informal setting either in our firm's conference room or in a conference room in the Courthouse. The Judge is not present and it is a relaxed setting. With respect to a Compliance Conference and a Note of Issue, those are dates that are put onto the Preliminary Conference Stipulation/Order by the Court. The Court puts those dates on the Conference Order to control the final date at which time all discovery must be completed and a final Conference, whereby the parties will be before the Court and either Stipulate or settle the divorce or mark it ready for Trial. A Note of Issue marks the divorce as ready for Trial.

When is a law guardian or a forensic appointed?

There are Law Guardians, experts, forensics, and appraisers. A Law Guardian is a lawyer who is appointed by the Court to represent children. Law Guardians in the County of Suffolk, as well as in Nassau, are excellent resources for the Courts and the parties. A Law Guardian is also paid handsomely for his or her services. The respective parties and their attorneys argue as to the pro-rata share of the expense to be paid by each party to the Law Guardian's fee.

The Law Guardian may make a recommendation to the Judge as to who is the better parent in a custody battle. Our firm works very well with all of the well-known Law Guardians. We are very well-known and widely recognized for our professionalism and competence and the Law Guardians are all well aware of our reputation and competence. In any event, we have also been affective in obtaining Judgments of Custody directly against a Law Guardian's recommendation. For example, we have been successful in obtaining custody for our client when the Law Guardian has recommended to a Judge that our client should have custody and we have obtained custody for our client in situations where the Law Guardian has recommended custody go to our opponent's client and not our client.

Experts And Forensics

Experts and forensics are very useful in connection with the evaluation of businesses and/or custody matters. With respect to businesses, we work well with forensic accountants and we are well-known and widely recognized for our ability to assist the forensic accountants in the evaluation of our client's assets and/or the assets of our client's spouse. There are certain assets and businesses that require forensic accounting in order to determine what portion a spouse may be entitled to in connection with a divorce. For example, in the event of a couple that gets married while one of them is in medical school and later becomes a physician in a medical group, that case would require a forensic accountant. In such a case, the forensic accountant would evaluate the spouse’s enhanced earning or earning capacity as well as the value of the medical practice and the spouse’s share in that medical practice as it relates to the divorce. The spouse that did not go to medical school or become a physician would then be entitled to a part of the physician spouse's portion of his/her medical practice. This occurs with many professions including lawyers and other businesses. We are successful on both sides of the street. We have helped spouses with businesses retain the majority of their businesses when their spouse has been less than an equal partner; has been less than supportive; and is not truly entitled to 50% or the customary percentage. On the other hand, we have represented spouses that were more than supportive; they were self-sacrificing and exemplary in their selflessness and were entitled to much less than the average percentage formula in connection with their spouse's business or practice.

Forensic psychologists/psychiatrists are very important resources for the Courts and for attorneys and parties in connection with custody battles. A good forensic could assist the Courts in determining parental fitness and the dynamics of the parent/child relationship. Forensics are often used in custody matters. Forensics as a whole should not determine the custody case. We have been very successful in using forensics as a tool to prove our client’s fitness as a parent and to obtain custody for our client. On the other hand, we have also been very successful in obtaining custody for our clients when forensics have actually recommended to the Judge that our client should not have custody. Once again, there have been cases when the forensic psychologist has reported to a Judge that our client was not a fit parent, and we continued to win custody for our client. This is usually an insurmountable task, but it has been done and it has been done well by the undersigned firm.

Appraisers

With respect to appraisers, they can appraise businesses, houses, real estate, automobiles, boats, yachts, artwork, jewelry, etc. The most common in Long Island is the marital home. As we all know, homes purchased ten years ago have gone up in value dramatically. The average divorce involves one of the parties staying in the marital home while the other party is bought out, or vacates until the youngest child is 18 or 21. There are also cases where the parties agree to sell the home and split the proceeds. In any event, a good real estate appraiser can give us the numbers that we need to settle cases or to win a significantly greater percentage of the equity at Trial. Additionally, there are many issues that appraisers can help with such as separate property claims and improvements and other values. For example, if a spouse uses a personal injury award or an inheritance (traditionally separate property) to improve a marital residence by adding a second story, an appraiser can give us several values, such as the value for the residence today, the value of the residence prior to the addition of the second story, and the difference including how much of the appreciation was due to the inclusion of the second story. Therefore, if the house is valued at $300,000 and our client put $30,000 into the house ten years ago to build a second story, a good appraiser could say, hypothetically, that the $30,000 put into the house by our client ten years ago resulted in $90,000 worth of appreciation to date. Our client would then be entitled to the $90,000 off the top and then 50% of the other value of the home. This is only an example. Appraisers can make complex additions to real estate; separate property claims; down payment issues and capital improvements into hard and fast numbers, which can be calculated and divided in the Court of Law. We work very well with all the appraisers and we are well-known and widely recognized with all.

What is an uncontested divorce?

Uncontested means there are no disagreements. Specifically, there cannot be one single issue or problem between you and your spouse concerning money; divorce-related issues, child custody, support, property, visitation, etc. Only a very small percentage of divorces are uncontested. In order for you to consider your divorce uncontested, you must have already discussed all issues between your spouse and yourself and there must be a complete agreement with respect to each and every single issue. Many "uncontested" divorces are handled at a very low rate by attorneys but if you look at the fine print, you will see that if there is a division of property or children involved, it will not be handled at a flat rate.

What requirements must be satisfied in order for me to start a divorce in the state of New York?

There are two requirements:

1. you must satisfy residency requirements; and
2. there must be valid grounds for the divorce.

How do I satisfy the residency requirements in order to get divorced in New York?

To file for a divorce in the State of New York, you must satisfy one of the following residency requirements:

1. The marriage ceremony was performed in New York State and either spouse is a resident of the State at the time of the commencement of the action for divorce and resided in the State for a continuous period of one year immediately before the action began; OR
2. The couple lived as husband and wife in New York State and either spouse is a resident of the State at the time of the commencement of the action for divorce and resided in this State for a continuous period of one year immediately before the action began; OR
3. The grounds for divorce occurred in New York State and either spouse is a resident of the State at the time of the commencement of the action for divorce and resided in this State for a continuous period of one year immediately before the action began; OR
4. The grounds for divorce occurred in New York State and both spouses are New York residents at the time the action is commenced; OR
5. If you and your spouse were married outside of New York State and you never lived together as husband and wife in this State and the grounds for divorce did not occur in this State -- either you or your spouse must presently be a resident of New York State and have resided continuously in the State for at least two years prior to bringing this action for divorce.

What are the grounds for divorce?

In order to file for a divorce in New York State, you must have a ground (a legally acceptable reason) for the granting of a divorce by the New York Courts. The legally acceptable reasons, or grounds for divorce, in New York are described in Domestic Relations Law §170. They are:

1. cruel and inhuman treatment;
2. abandonment;
3. imprisonment;
4. adultery;
5. living separate and apart pursuant to a Separation Judgment or decree; and
6. living separate and apart pursuant to a separation agreement

CRUEL AND INHUMAN TREATMENT

The treatment of the Plaintiff by the Defendant must rise to the level that the physical or mental well being of the Plaintiff is endangered and making it unsafe or improper for the Plaintiff to continue living with the Defendant.

You cannot obtain a divorce simply because you do not get along with your spouse ("irreconcilable differences") or because you have arguments or because of an isolated act in an otherwise long and peaceful marriage.

All acts must have happened within five (5) years of the date the Summons is filed with the County Clerk.

ABANDONMENT

An action for divorce may be maintained where the Defendant abandons the Plaintiff for a period of one year or longer prior to commencing the action and continuing to the present.

Abandonment may take the form of your spouse physically departing your marital home without any intention of returning for a period of one year or longer prior to commencing the action, and continuing to the present without any good reason for doing so and without your consent.

Another form of abandonment is called constructive abandonment, which involves one spouse's refusal to engage in sexual relations with the other spouse continuously for one year or longer prior to commencing the action, and continuing to the present without consent, good cause or justification.

Another form of abandonment is called a lockout, which involves one spouse's refusal to allow the other spouse into the home continuously for more than one year prior to commencing the action and continuing to the present.

IMPRISONMENT

An action for divorce may be maintained where the Defendant is imprisoned for a period of at least three (3) consecutive years. The imprisonment must have commenced after the date of the marriage and the Defendant must still be in prison when this divorce action is commenced. There is a five (5)- year time limit to start the action, beginning from the time of the completion of the third year of imprisonment.

ADULTERY

An action for divorce may be maintained based on adultery, which is an act of sexual or deviate sexual intercourse voluntarily performed by the Defendant with a person other than his or her spouse during the course of the marriage.

The ground of adultery can be difficult and expensive to prove because the testimony of the Plaintiff is not enough and other evidentiary requirements must be satisfied (the Defendant's admission is not enough). You should keep in mind that acts of adultery may qualify as acts of cruelty and entitle you to maintain a divorce action on the grounds of cruel and inhuman treatment.

CONVERSION OF A JUDGMENT OF SEPARATION

This ground is not used often. It involves a Judgment of Separation signed by a Judge or Referee of the Supreme Court.

To maintain a divorce action, the parties are required to live separate and apart. They must satisfy the terms of the Judgment of Separation for more than one year after the Judgment was granted.

CONVERSION OF A SEPARATION AGREEMENT

A Separation Agreement is an Agreement between the spouses that sets forth the terms and conditions by which the parties will live apart. The Agreement must be signed by the parties before a Notary Public and filed with the County Clerk in the county where one of the parties resides.

If you and your spouse have lived apart for more than one year according to the terms and conditions of a properly executed separation agreement, you may maintain an action for divorce. It may be advisable to consult an attorney regarding this ground for divorce.

After you have determined that you have met the requirements for residency and grounds for divorce, you may use the forms in this packet to file for a divorce. The instructions in this packet will help you in completing these forms, starting with your action and satisfying the other requirements for obtaining a divorce.