As history would have it, New York is known to have been and still is very much conservative as afar as marriage issues are concerned. New York became the final state in the whole country to ordain the no-fault divorce. The signing of the no-fault divorce into law on August 15, 2010, by Governor David Paterson, brought this unique feature into the state. In addition to that, New York also allows the at-fault divorce.
Grounds for divorce
At-fault divorce is the case where one of the marriage partners takes the initiative to accuse the other of certain wrongful conduct. The defendant may choose to contest or not. While the former derives from the fact that one of the parties is not willing despite the occurrence of the wrongdoing, the latter can occur when both parties are ready to take the divorce course.
One can obtain an at-fault divorce through the following:-
Cruel and inhuman treatments
The defendant may subject the plaintiff to several forms of treatments that are negatively beyond the conventionally accepted human code of conduct. Allegations of domestic violence, as well as mental and physical cruelty, fall neatly in this ground. These domestic violence grounds are entailed in the Domestic Relations Law §170.1.
The law stipulates, according to the Domestic Relations Law §170.2. The law broadly categorizes these grounds into constructive or actual abandonment. Whereas the former refers to the case where the defendant deliberately refuses’ to provide the marital rights to the plaintiff as expected per the marriage contract, the latter entails that the defendant is leaving the plaintiff without any intentions to come back.
Adultery is outlined in the Domestic Relations Law §170.4. Not unless there is a third party witness, the plaintiff’s sentiments that the defendant has been having sexual affairs outside the marriage does not guarantee a divorce.
Imprisonment of one of the marriage parties for not less than three years can guarantee divorce. This is according to Domestic Relations Law §170.3.
Separation can also be a valid ground for divorce. Separation may exist in two forms; judgment of separation, and separation agreement. The judgment of separation may occur through the court issuing the “Judgment of separation’ or “Decree of separation’ for at least one year. The separation agreement refers to the spouses not living together one year and have signed the “Separation of Agreement.”
The New York State Supreme Court cannot have total jurisdiction over the two parties, not until the residency requirements are fully satisfied. These include
If the party has been a New York state resident for a continuous period of not less than two (2) years immediately preceding to the starting of the lawsuit, or;
The grounds of divorce occurred within New York, and both of the parties are New York residents when the action is commenced or;
The spouses should have been married in New York, and either party should also be New York residents for a continuous period of at least 12 months (one year) immediately preceding the commencement of the lawsuit, or;
The marriage ceremony of the spouses should have occurred in New York, and either party should be a New York resident at the time of the initiation of the action for divorce, or;
It goes even without saying that currently, it is difficult, if not impossible, for couples to stay in one place for a relatively long time. One may wonder what would be the next course of action if a couple is married in New York and the moves to another state and seeks a divorce. According to Elliot S. Schlissel, the divorce attorney, the jurisdiction requirements would be almost the same as the residency requirements to ensure that the lawsuit is in New York. The lawsuit can be filed in the county of residence of either the wife or the husband.
Once the residency requirements, as well as jurisdiction requirements, have been met, the actual divorce action will begin when the plaintiff buys the index number and, after that, head to the County Clerk’s office to file the summons. The defendant should be given a copy of the summon personally. It is, therefore, vital to determine the actual location of your spouse. In case he/she lives outside New York, experts recommend that you find a non-New York resident to do the serving to your spouse outside the state. These servers may include a qualified attorney general, solicitor among others.
The server must fill a notarized affidavit of service. This notarized affidavit plays a crucial role as it is evidence that, indeed, the server served the required papers.
Through a well-stipulated procedure, it is relatively easier to file a divorce in case one or both the spouses think that it is necessary as per the circumstances. However, it is legal advice to ensure every requirement is meeting both the residency and jurisdiction, and also, your divorce ground should be valid to make it a successful action.