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The New York Divorce Law Waiting Period


This article is part of our series about "Divorce in New York". You can find the links to the other articles at the bottom of the page.

Most spouses want to move through their divorce case as quickly as possible. Whether you want to remarry or are just looking to move onto the next chapter in your life, most couples looking to divorce want to speed up the process in order to end their marriage.

If you’re a married couple living in New York, and seeking a quick divorce or an online divorce without an attorney, you may be wondering if the court requires you to wait before filing. (Keep in mind that there are different rules for domestic partnerships.)

Is There a Waiting Period for Divorce in New York?

Technically, there is no formal New York divorce law waiting period. However, you may have to wait to file depending on what grounds you claim in your divorce papers.

Grounds for Divorce in New York

If you are the spouse filing for divorce (also known as the plaintiff in a divorce action), you will need to select a legal ground on your divorce forms. 

The legal ground is essentially the reason or justification you are giving the court for why it should grant your divorce decree.

In New York, there are seven grounds (or legally acceptable reasons) for a court to grant a divorce. These legal reasons can be divided into two categories: no-fault divorce and fault divorce.

The legal ground that you use to divorce can affect the length of your divorce.

No-Fault Divorce

A no-fault divorce is just what it sounds like. It’s neither spouse’s fault, and you simply both want to end the marriage. This is likely the better route to go if you are seeking a quick divorce from your spouse or do not want to use a divorce attorney.

If you are a plaintiff seeking a no-fault divorce there are three grounds available to you when filing:

1. Irretrievable breakdown of marriage

This is the most commonly used no-fault divorce ground. You must show there is an irretrievable breakdown of you and your spouse’s relationship. The marriage must also be over for at least six months. Last, all economic issues such as debt, the division of marital property (Note: New York is now an equitable distribution state), custody of the children, or alimony (also known as spousal support) must be settled.

2. Divorce after legal separation

To use this ground, the plaintiff and defendant must file a separation agreement and live apart for at least one year.

3. Divorce after a judgment of separation

This ground is not used often in divorce cases. Here, the Supreme Court of New York (which is actually New York’s trial-level court) draws up a judgment of separation. The spouses must also live apart for at least one year.

Fault Divorce

New York divorce law also recognizes fault-based reasons for divorce. In a fault divorce, the plaintiff will have to prove that their spouse (the defendant) committed a wrongdoing or is to blame for the breakdown of the marriage.

If you are a plaintiff seeking a fault divorce there are four grounds available to you when filing:

1. Cruel and Inhumane Treatment 

To use this ground it has to be more than just arguments and dislike for your spouse. The court is looking for specific acts of cruelty that rise to the level of danger that would make it physically unsafe for the plaintiff to continue living with and remain married to the defendant.

2. Abandonment 

In order to be considered abandoned by the court, the defendant must have abandoned the plaintiff for at least one year. An example of abandonment would be when a spouse has left you and does not intend to return.

3. Imprisonment 

If your spouse has been in prison for at least three consecutive years, you may use imprisonment as a ground for divorce. Your spouse must have become incarcerated after your marriage ceremony. This ground is available to plaintiffs whose spouse is either currently incarcerated or up to five years after the defendant has been released from prison.

4. Adultery 

This ground can be hard to prove. A plaintiff must show that the spouse has committed adultery during the marriage, but evidence from a third party is necessary to prove adultery.

As a result, if you are a plaintiff and want to claim a fault ground as the reason for the ending of your marriage, you may have to wait before filing in order to be eligible to use one of the above four grounds.

Residency Requirement and Waiting Period

New York’s residency requirement may also affect when you can submit your divorce filing with the court and prolong the process to get your divorce decree. There are a few ways to meet the residency requirement:

  1. Either you or your spouse have been living in New York continuously for at least two years before filing your divorce case.
  2. Either you or your spouse have been living in New York continuously for at least one year before filing your divorce case and either:
    1. You got your marriage license in New York or
    2. The grounds for your divorce happened in New York
  3. Both you and your spouse are residents of New York on the day the divorce proceedings started and the grounds for your divorce happened in New York.

Therefore, if you don’t meet any of the above residency requirements it also affects how long it takes to obtain a divorce.

How Long Does It Usually Take to Finalize a Divorce in New York?

Divorce can be stressful and most spouses usually want to get through the divorce process as quickly as possible. If you’re looking to end your marriage, the ultimate question on your mind may be—well, just how long until I get that final decree of absolute divorce from the court?

Even an attorney may have difficulty answering that question because every divorce case is unique. In addition to the legal ground and residency requirement in New York, other factors may affect how long it takes to get that decree from the court.

One big factor is whether you have a contested or uncontested divorce.

A contested divorce is where the married couple cannot agree on issues such as alimony, child custody, child support, division of marital property, debt, etc. The longer it takes the spouses to work out these issues, the longer it will be until they get their decree.

If you and your spouse cannot come to an agreement on these issues, it’s likely you will need an attorney to help you reach an agreement. 

Issues regarding custody, visitation, and child support are family law issues that can be worked out in the New York family court before you file for divorce. 

A note is that you cannot get a divorce in New York family court. New York divorces may only be filed in the New York Supreme Court.

Conversely, an uncontested divorce is where the married couple can reach an agreement on these issues. 

Perhaps you have a prenuptial agreement that addresses these concerns. Or maybe you and your spouse are amicable and can talk these issues out and you may not even need an attorney altogether. Regardless, an uncontested divorce will require both spouses’ mutual consent.

Consequently, it’s hard to estimate how long it will take to finalize your divorce in New York. It’s safe to say that at a minimum, it will take at least six months but that it frequently can take a year or longer.

To continue learning about divorce in New York, see the following articles in the series: