Legal Requirements for Divorce

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It is important to remember that beyond being a relationship matter, divorce is a legal procedure. In the United States, divorce is defined as the termination of a marriage by legal action, something that requires not only the input of the involved parties but also the involvement of the court. As such, it’s a good idea for those who are considering a divorce to start the process by considering whether or not they currently meet the legal requirements for divorce. While some of these requirements may seem obvious, others may be surprising to those who have never previously been through a divorce.

A Legal Marriage

The starting point for any divorce is a marriage. While the precise legal definitions of divorce might differ between states, each state does note that the divorce requires the dissolution of a legal marriage. If you and a partner have not been married, then, you may not be divorced. Likewise, those who consider themselves to be married but who have not met the legal requirements for having a valid marriage cannot be divorced. Somewhat confusingly, those who are considered by their states to be in a common law marriage may obtain a standard divorce even if they themselves have never considered themselves to be married.

A Petititon or Complaint

A divorce also requires a petition for the divorce by at least one of the two involved parties. You may not simply declare yourself divorced and have that declaration carry a legal weight. You may work through the legal divorce with your partner and have minimal interference by the court, but the petition or complaint is a necessary legal part of the process. If there is no paperwork filed with the court, there is no divorce and no substantial change to the legal relationship between the two parties.


If you which to get divorced in a state, you must meet the residency requirements of that state. In New York, at least one of the two parties must meet very specific residency requirements. To prove residency, one of these three things must hold true:

– At least one spouse must have lived in New York for two continuous years before the divorce.

– At least one spouse must have lived in New York for one year before the divorce, and either the grounds for divorce happened in New York or the marriage itself happened in New York.

– Both parties are New York residents and the grounds for divorce happened in New York.

Grounds for Divorce

The state in which you live will determine what legal grounds you must have for divorce. While many states have moved towards so-called “no-fault” divorces, New York State still requires individuals to show one of seven reasons for divorce for the process to be completed. Though the burden is not necessarily as onerous as it was in years past, it should be noted that one must still show the grounds upon which a divorce should be granted. The seven grounds for divorce are as follows:

Irretrievable Breakdown

Often considered New York’s version of a no-fault divorce, a divorce can be granted under these grounds if the marriage has been over for at least six months and all other legal and economic issues (including custody) have been divided.


For the grounds of abandonment to be considered, one party must either leave the marital home for a period of one year with no intention of returning or refuse to engage in sexual relations with his or her spouse for an equal period of time.


If one spouse was in prison for at least three years and was put into prison after the marriage had begun, the grounds of imprisonment may be used for divorce.

Cruel and Inhumane Treatment

These grounds may be used if one party to the marriage was put in mental or physical harm during the last five years and continuing to be in the marriage would put that party in danger.


For the grounds of adultery to be used, it must be proven that one partner committed adultery during the marriage. This must be proven through evidence, not including that from either party to the divorce.

Legal Separation

A divorce may be granted after both parties file a valid separation agreement with the court and live apart for one year.

Judgment of Separation

An incredibly rare occurrence, these grounds occur when the state Supreme Court issues a judgment of separation and the couple lives apart for at least a year.

Obtaining a divorce in New York means meeting all the criteria above. As such, it’s always important to consult an attorney before beginning the divorce process.

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