The marriage is over.
You’ve separated.
In fact, one of you has left the state entirely.
Now you’re ready to make that separate official.
Can you still divorce in New York State when one of you is a non-resident?
Yes, you can. You can still file for divorce in New York State, regardless of the state your spouse lives in, so long as you pay attention to the rules and meet New York State's requirements. It can just be a bit more complicated. So, let's walk through the process.
1. I live in New York. Is that enough to meet New York State's Residency Requirement?
Yes, it is. So you know, there are at least three ways to meet the residency requirements to divorce in New York State:
A) One of you must have lived continuously in New York State for at least two years before you start your divorce action.
B) One of you has lived continuously in New York State for at least one year before your divorce case starts and 1) you married in New York State, or 2) you lived in New York State as a married couple, or 3) the grounds for your divorce happened in New York State.
C) Both of you are New York State residents on the day you start your divorce, and the grounds for your divorce happened in New York State.
2. What grounds for divorce qualify?
There are seven legally acceptable reasons or grounds for divorce in New York State:
- An irretrievable breakdown in your relationship for at least six months (often referred to as a "no-fault" divorce).
- Cruel and inhuman treatment – which requires a Judge to look for specific acts of cruelty within the past five years.
- Abandonment – in which your spouse must have abandoned you for at least one or more years. This can be the physical departure from the marital home without an intention of returning, or "constructive" abandonment, where one spouse refuses to have sex with the other spouse.
- Imprisonment – when one spouse has been in prison for three or more years in a row.
- Adultery – for which a third party must provide evidence.
- Divorce after a legal separation agreement – both of you sign and file a valid separation agreement and live apart for one year.
- Divorce after a judgment of separation – rarely used; this ground requires the New York State Supreme Court to issue a judgment of separation and then you both must live apart for one year.
3. Can I file for divorce in New York even though we married in another state?
Yes. You do not have to go back to the state that issued your marriage license. Instead, you can file in the state where you meet the residency requirement. Be prepared to provide evidence that you or your spouse meets the New York State residency requirement for divorce by being able to present the court with acceptable documentation that may include a driver's license, voter registration card, a library card, vehicle registration. The list is endless. But whatever you do, do not maintain a residence in another state that could imply that you do not intend to remain in New York.
4. Are there advantages to filing in my spouse's home state?
Whether you choose to file for divorce in New York State or another state depends on a number of issues. If your divorce is straightforward and you both agree to most of the material terms of your divorce, where you file for divorce may not be that important. However, if there are issues of child support, custody, property division, or spousal maintenance (alimony), you may want to consider filing in the state offering you more favorable terms.
5. If my spouse is out-of-state, do I have to notify them of the divorce?
Yes, regardless of whether your spouse is in New York, Florida, or any other state, you always must notify them of your divorce action and you must do so in a manner the court finds acceptable.
6. Will a New York divorce decree be valid in other states?
Your New York State divorce decree will be valid in other states because this right is guaranteed through the Full Faith and Credit Clause of the United States Constitution.
Every divorce is different. Suing for divorce from a spouse who no longer resides in New York can be particularly complicated. If you have questions about how best to navigate your options, let's talk. I'm Dan Stock, and you can call me at 475-232-4105 or email me at dhstock@danielhstockpllc.com to schedule a consultation.