Imprisonment as Grounds for Divorce in New York

While the state of New York does now allow no-fault divorces, you can still also pursue a fault-based divorce if you wish. In such a scenario, it is your responsibility to prove the other spouse’s misconduct in the marriage caused its irretrievable breakdown. Common grounds for fault-based divorce include adultery, cruelty, substance abuse and insanity.

Imprisonment can also be used as a ground for divorce in New York. It may or may not be more advantageous to file for no-fault divorce or separation rather than waiting for a prison sentence to be handed down. But if you do pursue imprisonment as a ground for divorce, here’s what you need to know.

What must you be able to prove?

To file for divorce on the ground of imprisonment, you must be able to prove a judge sentenced your spouse to a prison term and that it occurred during your marriage. In New York, your spouse must be sentenced to at least three consecutive years in prison, with that sentence beginning after your marriage began.

Proving your spouse was sentenced to prison is easy — that information is public knowledge to anyone who wishes to see it. You must also meet the residency requirements to file for divorce, which is 180 days in New York.

After you file for divorce, you will submit a copy of the paperwork to the court and your spouse. Typically you are able to have this paperwork professionally served, but if your spouse is in prison this step could have some extra complications. There are specific legal requirements for how to serve court papers to a prison inmate. You might, for example, need to send all the documents to a prison litigation coordinator, or mail the papers to the prison’s warden with your spouse’s inmate number included on the envelope. You can speak with the prison administrator for more information about how to go about this.

To learn more about the various grounds for divorce in New York, meet with a skilled family law attorney at Bryan L. Salamone & Associates.