Does New York Require Separation Before Divorce?

Many requirements are involved in getting a divorce in New York. Often, people wonder if one requirement concerns being separated from one's spouse for a certain amount of time before seeking a divorce. The answer is both "yes" and "no."

Whether living apart from your spouse is necessary depends on the legal basis (grounds) for your divorce. Some grounds require that you and your spouse have been legally separated for a specific amount of time. Others specify that certain conditions must have been present that drove you and your spouse to live separately for an extended period. Still, a couple of grounds have no time requirements.

Let us explore the separation requirements for a New York divorce.

Divorce After Legal Separation

You and your spouse may have decided to legally separate before getting an official divorce. A legal separation is like a divorce in that you and your spouse must decide on various critical issues, such as spousal maintenance and child custody and visitation. You must also have drafted a separation agreement that the court approved to make the separation legally valid.

If, during the period of separation, you and your spouse decide to proceed with your divorce, you could use the court-approved separation agreement for arrangements for divorce-related matters.

To get a divorce after legal separation, you and your spouse must have lived apart for at least one year. Thus, for a conversion divorce, New York does have a separation requirement.

Divorce After Judgment of Separation

Seeking a divorce on this ground requires that the Supreme Court issue a judgment of separation. You and your spouse must live separately for at least one year before you can be granted a divorce.

Divorce Based on Abandonment

If you are seeking a divorce on the basis of abandonment, you and your spouse would not have to have been legally separated before filing your petition. However, your spouse must have physically left your home and had no intention of returning for at least one year.

Divorce Based on Incarceration

Filing for a divorce on the grounds of incarceration does not have a legal separation requirement in the sense that you and your spouse obtained a court-ordered separation agreement. Still, it does require that your spouse was imprisoned for three or more years.

Your spouse must have been incarcerated during your marriage. Additionally, they must have been serving a consecutive prison sentence, meaning that they were imprisoned for at least three years in a row.

You can file for a divorce on the grounds of incarceration while your spouse is in prison or up to five years after they have been released.

Divorce Based on an Irretrievable Breakdown of Marriage

This basis for a divorce does not have a separation requirement. However, it does require that a certain amount of time elapse before you submit your petition. Under this ground, your marriage must have been beyond repair for at least six months.

Divorce Based on Other Grounds

Listed above are five of the seven legal reasons for divorce in New York. As noted, these grounds have specific timelines attached to them. The remaining two grounds do not. They include adultery and cruel and inhuman treatment.

Contact a NY Divorce Attorney

Seeking a divorce can be complicated. Because of the emotional nature of the situation, you might overlook an essential filing requirement. That is why it is helpful to have a compassionate and knowledgeable lawyer guiding you through the entire process.

At Levi Divorce & Family Law Attorneys, our team provides legal representation in Queens and can assist with your divorce. Contact us at (718) 215-0121 today.