I want to file for divorce so that I can remarry

Aug 8, 2012 by

Question: 

I’ve been separated from my husband for about 7 years – not legally. I want to file for divorce so that I can remarry. Do I have to wait a year a before I start a divorce? I live in New York.

State: 
New York

Answer: 

Although New York does not necessarily require a waiting period before a spouse can start filing divorce paperwork, it does incorporate a timing aspect in its requirements for residency and legal grounds for divorce.

In order to file for divorce in New York, you must first meet the residency requirements. You may do so in one of the following five ways.

1. Your marriage ceremony was performed in New York and at least one of you has lived in New York the year before you began the divorce;

2. You lived in New York as a married couple and at least one of you is a resident of New York at the time you began the divorce as well as the year leading up to it;

3. The grounds for divorce (see below for more information about the grounds for divorce) occurred in New York and at least one of you is a resident of New York at the time you began the divorce as well as the year leading up to it;

4. The grounds for divorce occurred in New York and both spouses are residents of New York at the time you began the divorce;

5. If you were not married in New York and the grounds for divorce did not occur in New York, at least one of you now lives in New York and lived there during the two years prior to the beginning of the divorce.

So if you and your husband’s situation falls within one of the above five scenarios, you probably will not need a waiting period to meet the residency requirement.

However, even if you meet the residency requirement you also have to meet the grounds for divorce requirement. This may be done in one of the following six situations.

1. Cruel and inhuman treatment of the spouse seeking divorce, such that it endangers that spouse’s physical or mental well being and renders it unsafe or improper for the spouses to live together;

2. Abandonment of the spouse seeking divorce for a period of one or more years;

3. Confinement of the spouse not seeking divorce for a period of three or more consecutive years after the marriage;

4. Adultery;

5. The husband and wife have lived apart for one or more years after the granting of a decree or judgment of separation and there is satisfactory proof that the spouse seeking divorce has substantially performed all the terms and conditions of the decree or judgment;

6. The husband and wife have lived apart for one or more years pursuant to a written agreement of separation and there is satisfactory proof that the spouse seeking divorce has substantially performed all the terms and conditions of the agreement. The agreement or a memorandum of the agreement must be filed in the office of the clerk.

Situations 1 and 4 do not require any waiting period. Situation 2 requires abandonment for at least one year before you can file for a divorce. Situation 3 requires confinement of the spouse for at least three years before you can file for a divorce. Situations 5 and 6 require that you have lived apart from your spouse at least one year after the separation decree or separation agreement has been filed before you can file for a divorce. So depending on what grounds for divorce you rely on, you may have to wait the required amount of time.

It is recommended to consult an attorney to ensure that you are aware of all the divorce requirements in your state. It will also be to your benefit to find out what options are available to you so that you can pursue the course of action best tailored to your specific needs. – The Divorce.com Team

Wendy Jaffe and Divorce.com can only provide general information about divorce. DO NOT RELY ON MS. JAFFE’S ADVICE ALONE. Before acting on information provided by Ms. Jaffe or by Divorce.com, talk to an attorney first about your particular facts and the law of your state. By submitting your question to Divorce.com, you are not creating an attorney/client relationship with Ms. Jaffe or with any of the other attorneys listed on this site.

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