New York was the last state in the country to adopt no-fault divorce, finally adding it in 2010. Before that, spouses had to prove fault or live apart under a separation agreement for at least a year to get divorced. The no-fault ground changed everything for New York couples: either spouse can now obtain a divorce without the other's agreement and without proving wrongdoing. But New York still has some distinctive procedural requirements, relatively strict residency rules, and an equitable distribution system that does not automatically split marital assets 50/50.
Here is how New York divorce actually works, from the residency requirements through the final judgment.
New York residency requirements
New York has some of the more demanding residency requirements in the country. At least one of the following must be true before you can file for divorce in New York:
Either spouse has lived in New York for at least two continuous years before the divorce action is started. Or either spouse has lived in New York for at least one continuous year and one of the following is also true: the couple was married in New York; the couple lived as a married couple in New York at some point; or the grounds for divorce arose in New York. Or both spouses are residents of New York on the day the divorce action starts and the grounds for divorce arose in New York.
The two-year residency option is the simplest and most commonly used. For couples who have not lived in New York that long or who have a complicated residency history, confirming which basis applies before filing avoids having the case dismissed on jurisdictional grounds.
Grounds for divorce in New York
New York offers both no-fault and fault-based grounds for divorce.
The no-fault ground, added in 2010, is "irretrievable breakdown of the marriage for a period of at least six months." This simply means the marriage has broken down and cannot be repaired. One spouse's statement to that effect is sufficient. The other spouse cannot block the divorce by denying that the marriage has broken down.
Fault grounds are still available and occasionally used: cruel and inhuman treatment, abandonment for at least one year, imprisonment of the other spouse for three or more years after the marriage, and adultery. A legal separation agreement or a judgment of separation that has been in effect for at least one year also qualifies as a ground for divorce in New York.
Fault grounds rarely change the outcome in modern New York divorces. Courts do not typically penalize a spouse financially for fault in the marriage breakdown. The main practical reason to plead fault is if one spouse refuses to cooperate with the no-fault process and the other spouse wants to proceed anyway, though the no-fault ground makes this less of an issue than it was before 2010.
New York is an equitable distribution state
New York divides marital property according to equitable distribution, which means fairly but not necessarily equally. Courts consider a range of factors when deciding how to divide property: the length of the marriage, the income and earning capacity of each spouse, the age and health of the spouses, contributions to the marriage including homemaking and child-rearing, the tax consequences of the proposed distribution, and any other factor the court finds relevant.
Marital property in New York includes most assets acquired by either spouse during the marriage, regardless of whose name they are in. Separate property, which each spouse keeps outright, includes property owned before the marriage, gifts from third parties, inheritances, and compensation for personal injuries (other than lost wages). Commingling separate and marital funds over time can convert separate property into marital property, which is a source of significant dispute in long marriages.
In uncontested divorces, the spouses agree on the distribution themselves and submit a Stipulation of Settlement to the court. As long as the agreement is not unconscionable, the court approves it without substituting its own judgment for the parties' agreement.
New York's maintenance (alimony) framework
New York calls alimony "maintenance" and has a statutory formula for calculating both temporary maintenance (paid during the divorce proceedings) and post-divorce maintenance. The formula uses both spouses' incomes and produces a guideline amount and duration that courts use as a starting point.
Post-divorce maintenance in New York considers the length of the marriage, the standard of living during the marriage, the earning capacity of the lower-income spouse, and whether any period of maintenance is needed for the lower-income spouse to become self-supporting. Long marriages where one spouse left the workforce or reduced their career to support the household are more likely to produce significant maintenance awards than short marriages between spouses with similar incomes.
In an uncontested divorce, the spouses negotiate maintenance as part of the overall settlement. The court can deviate from the guideline formula if the parties agree and the deviation is not unconscionable.
Child custody in New York
New York courts apply a best interests of the child standard to custody decisions. New York uses the terms "legal custody" (decision-making authority over major life decisions) and "physical custody" (where the child primarily lives). Joint legal custody, where both parents share decision-making, is common in New York divorces where the parents can communicate reasonably.
Child support in New York is calculated under the Child Support Standards Act (CSSA), which sets support as a percentage of the combined parental income up to a cap, then applies the same percentage to income above the cap at the court's discretion. The percentages are 17% for one child, 25% for two children, 29% for three children, 31% for four children, and at least 35% for five or more children. The court allocates the combined support obligation between the parents based on their respective shares of the combined income.
The New York divorce process step by step
One spouse (the plaintiff) files a Summons with Notice or a Summons and Verified Complaint in Supreme Court in the county where either spouse resides. New York divorces are filed in Supreme Court regardless of asset value or complexity. The filing fee is $210.
The other spouse (the defendant) must be served with the divorce papers. Personal service by someone other than the plaintiff is required; the plaintiff cannot serve the papers themselves. In an uncontested divorce where both spouses cooperate, the defendant can sign an Acknowledgment of Service to avoid formal process service.
Both spouses must complete and exchange financial disclosure documents: a Statement of Net Worth detailing income, expenses, assets, and debts. This is required in virtually all New York divorces unless the court grants a waiver.
The parties negotiate and sign a Stipulation of Settlement covering all issues: property division, maintenance, and if there are children, custody and support. This document, along with a proposed Judgment of Divorce and supporting forms, is submitted to the court.
In an uncontested divorce, the judge reviews the papers and either signs the Judgment of Divorce on the papers or schedules a brief court appearance. No extended hearing is required if the paperwork is in order.
For couples who agree on all terms and want help preparing the required New York forms, Nolo's Online Divorce generates New York-specific divorce paperwork including the Summons, Stipulation of Settlement, and Judgment of Divorce, with county-specific filing instructions.
A real-world example
Susan and Robert have been married for twelve years in Manhattan. They have no children. Robert earns significantly more than Susan. They agree on equitable distribution of their apartment (to be sold with proceeds split 60/40 in Susan's favor given the disparity in earning capacity), a two-year maintenance arrangement for Susan at the guideline amount, and division of their respective retirement accounts. Susan files as plaintiff in New York County Supreme Court. Robert signs an Acknowledgment of Service. Both complete Statements of Net Worth. Their attorneys draft the Stipulation of Settlement. The judge reviews the papers and signs the Judgment of Divorce without a hearing. The entire process takes about four months from filing to final judgment.
Frequently Asked Questions
How long does a divorce take in New York?
New York has no mandatory waiting period after filing, but the practical timeline for an uncontested divorce is typically three to six months from start to finish. The time is consumed by completing the required financial disclosures, negotiating and drafting the Stipulation of Settlement, and waiting for the court to review and sign the paperwork. Contested divorces take significantly longer, often a year or more. The court's docket in heavily populated counties like New York and Kings can also add delay beyond what the parties control.
Does New York require a separation agreement before divorce?
No, not since the no-fault ground was added in 2010. Before 2010, couples who did not want to prove fault had to live apart under a written separation agreement for at least a year before filing. Today, either spouse can file for divorce immediately on no-fault grounds without any prior separation period. A separation agreement is still sometimes used as a planning tool when spouses want to work out terms before formally filing, but it is not legally required as a precursor to divorce.
Can I get a divorce in New York if my spouse refuses to cooperate?
Yes. The no-fault ground does not require the other spouse's cooperation or agreement. One spouse can unilaterally file and pursue the divorce even if the other spouse refuses to participate. If the other spouse does not respond to the papers after being properly served, the filing spouse can request a default judgment of divorce. The court will still require appropriate financial disclosures and, if there are children, will ensure that custody and support provisions meet required standards before granting the divorce.
How are retirement accounts divided in a New York divorce?
Retirement accounts accumulated during the marriage are marital property subject to equitable distribution. Dividing a 401(k) or pension requires a Qualified Domestic Relations Order (QDRO), a separate court order submitted to the plan administrator. IRAs are divided by a transfer incident to divorce that must be reflected in the Stipulation of Settlement and the Judgment of Divorce. Retirement accounts are often significant assets in long marriages, and addressing them correctly in the settlement documents is important since errors are difficult and costly to correct after the divorce is finalized.
What is the difference between legal separation and divorce in New York?
A legal separation in New York involves a court-approved Separation Agreement that formally defines the rights and obligations of both spouses while they remain legally married. Legally separated spouses cannot remarry. After living under a separation agreement for at least one year, either spouse can use the separation as a ground for divorce and convert it into a full divorce relatively easily. Some couples choose legal separation instead of divorce for religious reasons, to maintain health insurance coverage, or to preserve certain Social Security benefits. For most couples who have decided to end the marriage, divorce is more straightforward than pursuing a formal separation first.