USA – NEW YORK Law and Practice Contributed by: Gretchen Beall Schumann and Rashel Zywica, Schumann Law LLC
1. Divorce 1.1 Grounds, Timeline, Service and Process Grounds The grounds for divorce set forth in the New York Domestic Relations Law (NY DRL) §170 (1)-(7) are: • cruel and inhuman treatment (the conduct of the defendant must endanger the physical or mental well-being of the plaintiff as to render it unsafe or improper for the plaintiff to cohabit with the defendant); • abandonment (actual or constructive, for a period of one or more years); • imprisonment (defendant incarcerated for three or more consecutive years after the marriage); • adultery; • living separate and apart for one or more years pursuant to a written separation agreement that was subscribed by the parties and acknowledged or proved in the form required for a deed to be recorded or pursuant to a decree/judgment of separation; the plaintiff must have substantially performed all the terms and conditions of the agreement or decree/judgment; and • irretrievable breakdown of the marriage for a period of at least six months, provided that one party states so under oath (the court will not issue a Judgment of Divorce until the ancillary custodial and economic issues have been resolved.) These grounds apply to same-sex spouses, but they do not apply to civil partners. It is possible to enter into a domestic partnership; however, domestic partner ‑ ships provide limited rights and can be terminated by either partner at any time by filing a termination state ‑ ment in person at the city or county office in which the couple registered their partnership. Domestic partner ‑ ships are not dissolved by divorce courts. Process and Timeline There is no mandatory timeline for divorce, and courts maintain discretion with respect to the length of indi ‑ vidual proceedings. The parties do not need to attend court, provided that the necessary submissions have been filed with the Supreme Court of the State of New York, in the
county where the parties are divorcing. It is not pos ‑ sible to procure a divorce without the Supreme Court’s entry of a Judgment of Divorce, even if the matter is resolved without court intervention. There is no period of separation required before com ‑ mencing a divorce action in New York State. Rules for Service New York State law requires that the defendant in a divorce action be personally served with the summons with notice or summons with verified complaint. To have your spouse served in any other way, you must get permission from the court, or, if your spouse has legal representation, that attorney may agree to accept service of the summons with notice or summons with verified complaint on behalf of the defendant. Religious Marriages and Divorces In certain cases, New York courts may recognise a marriage as valid even if no marriage licence or mar ‑ riage certificate was issued. If the couple has a reli ‑ gious ceremony and genuinely intends to enter a legal marriage, their marriage may be recognised under New York law. DRL §25 provides that a properly solemnised marriage ceremony will not be void based on the fail ‑ ure to obtain a marriage licence. DRL §12 requires that the parties to the marriage solemnly declare each other as husband and wife (or other spousal arrange ‑ ment) in the presence of an officiant or clergyman and a witness. In the absence of a licence, the court will balance various factors to determine whether the mar ‑ riage is legitimate and enforceable. These cases are rare and highly fact-specific. As for divorces in cases where the spouses were married in a religious ceremony but with a legitimate marriage certificate, once a divorce is finalised, the Supreme Court issues a decree, and then either party is free to remarry. Some consideration is given to the fact that spouses may be bound under religious mar ‑ riages unless certain steps are taken to release that spouse from marriage under religious law. Other Processes in Relation to Ending a Marriage New York Domestic Relations Law provides for other actions to void a marriage, such as annulment or sepa ‑ ration (NY DRL §§5, 6 and 7, 140 and 200, respective ‑
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