Can I File for Divorce in NY if My Spouse Lives Elsewhere?

Each state has residency requirements to be eligible to file for divorce in that state. The stipulations range from being a resident for any length of time to up to 1 year or more, depending on the circumstances.

New York allows individuals to file for divorce even if one of the spouses never lived in the state. Several factors determine residency eligibility for divorce in the Empire State.

Residency can be verified through lease agreements, pay stubs, driver’s license, and utility payments.

When a 2-Year Residency Requirement Applies

The 2-year residency requirement to file for a New York divorce is reserved for situations where only one spouse is living in the state. Even if the other spouse has never set foot in New York, the complainant spouse can file here as long as they have been living in New York State continuously for at least 2 years before they initiate the divorce case.

Circumstances Requiring a 1-Year Residency

The residency requirement is reduced to 1 year of continuously living in the state if either spouse is living in the state and any of the following scenarios is true:

  1. The marriage took place in New York State.
  2. The two parties lived as a married couple in the state.
  3. The grounds for divorce occurred in the state.

Eligibility of Cases for Residency of Any Length

Some divorce cases do not require any specific length of time that either spouse is a resident of New York. If both spouses are residents of New York when the divorce is filed and the grounds for the divorce happened in the state, either spouse is eligible to file for divorce at any time.

Timeframes Impact Divorce Grounds

The residency requirement is not the only aspect of a New York divorce that requires a certain passage of time.

In 2010, our state became the last to recognize a true no-fault divorce option. To use this divorce ground, your marriage must be in a state of “irretrievable breakdown” for at least 6 months. This no-fault option also requires that the divorce is uncontested, meaning there is agreement on property division, child custody, and child support. Disagreement over any divorce term means the divorce is considered contested and cannot be filed under this option.

Before 2010, the closest New York had to a “no-fault” divorce was the ground of divorce after a legal separation agreement. This ground is still offered under the state’s fault options. For this ground to apply, both spouses must have signed a valid separation agreement and lived apart for at least one year.

Other fault grounds have mandatory timespans:

  • Cruel and inhuman treatment: The acts qualifying as cruel and inhuman must have occurred within 5 years of filing for divorce.
  • Abandonment: The spouse must have abandoned the filing spouse for at least 1 year.
  • Imprisonment: One spouse can file under this fault if the other spouse was incarcerated after the start of the marriage and has been in prison for at least 3 years. This ground can also be used for up to 5 years after the spouse’s release from prison.

There are no mandated timeframes attached to divorces filed on the grounds of adultery.

Experienced Lawyers to Verify Divorce Residency

At Jason M. Barbara & Associates, P.C., our attorneys can answer any questions you have about residency requirements, divorce grounds, and the filing process. Our background spans uncontested divorces to the most complex and bitter disputes that must go to court.

Schedule a free consultation with us by calling (516) 406-8381 or reaching out online.