Although many people think of New York State as an "advanced" or "liberal" jurisdiction, until 2010 New York State lagged behind the rest of the nation when it comes to uncontested, no-fault divorces.  Most states have some form of no-fault divorce which does not require a previous period of separation, but until 2010, New York State did not.  In order to obtain a true no-fault divorce in New York State, until the effective date of the no-fault divorce legislation which takes effect in October 2010, a spouse must first obtain a legal separation and then wait a year. Otherwise, the divorce complaint must accuse the other spouse of abandonment, or cruel and inhuman treatment, or one of several other causes of action for divorce.  The person who brings the action is listed as the plaintiff, and the other spouse is listed as the defendant.

The causes of action for divorce in the State of New York are listed in Section 170 of the Domestic Relations Law.  The two fault grounds which are most commonly used are "cruel and inhuman treatment" (subsection 1) and abandonment for a period of a year or more (subsection 2).   Subsection 3, imprisonment of the spouse for three or more consecutive years after the marriage, only applies in those limited cases.

Cruel and inhuman treatment is not limited to physical abuse, but can also include an ongoing pattern of emotional and psychological cruelty.  This must be significant cruelty, however, going beyond the usual marital arguments.  Some courts are more generous than others in approving uncontested divorces which are based on cruel and inhuman treatment.  Many judges will reject a divorce complaint which fails to state a sufficient case.  Similarly, in the case of abandonment, usually a physical departure from the marital home and staying away for a year or more without the consent of the other spouse is required to state a cause of action, but there are some other ways in which abandonment can be shown.  There can be a "lock-out" in which the defendant spouse has excluded the plaintiff spouse from the marital home for a year or more. Another approach to abandonment grounds for divorce is what is called "constructive abandonment," in which one spouse has consistently refused marital relations (sex) with the other spouse for a period of a year or more.

If the spouses choose not to use any fault grounds, until the effective date of the no-fault divorce legislation in October 2010, the parties must first separate, not just physically but legally, for a period of one year or longer.  Legal separation can be accomplished either by a judgment of separation (subsection 5) or a separation agreement (subsection 6).

Few people choose the judgment of separation for practical reasons: it requires filing an action in court which must go before a judge for approval, doubling the filing fees and associated court costs by requiring two court proceedings, one for the separation and then a second one for the divorce.  To avoid these extra costs, most couples who are seeking a legal separation opt instead for a written separation agreement.

It is highly recommended that the spouses each consult with an attorney about the separation agreement, even if the couple is in substantial accord about what the agreement should say.  An attorney, or ideally two so that each party's interests are protected, should still review the agreement to make sure that all the necessary language is included. There are a number of difficult issues which can trip up unrepresented parties, such as the child support guidelines and the proper division of pensions and retirement plans.  One or both spouses may also wish to consult with a divorce financial planner (such as the members of the Association of Divorce Financial Planners) to discuss the long-term financial consequences of the aspects of their proposed agreement.  Often, divorcing spouses are unaware of the potential tax consequences and other financial repercussions of their agreements.

A little-known but often extremely helpful way to accomplish an amicable divorce is a process known as "collaborative law." This process does involve attorneys, and it may optionally also involve other professionals, including financial "neutrals"such as divorce financial planners, and mental health professionals (especially when child custody is involved).   These additional professionals are jointly hired by both parties to help them both reach the best agreement.  In collaborative practice, the parties and their attorneys agree in writing at the beginning of the negotiating process that it is the goal of all participants to reach an agreement without court involvement.  Toward this goal, the parties and attorneys in a collaborative case agree that if negotiations fail and the case must go to court, both attorneys will withdraw and the spouses must hire new counsel. This provides all participants in the process, including the attorneys, with a strong motivation to continue negotiations, rather than striking a dramatic pose and proclaiming, "See you in court!"

After a separation agreement has been prepared, signed and acknowledged before a notary public in the correct form, one year must pass and then either party can bring an action for divorce based upon legal separation for one year or more.  A divorce based on fault can still be brought at any time, without the year waiting period, but neither party can claim abandonment against the other for the time when they are legally separated, because that separation is by mutual consent.

If only one of the parties lives in New York State,  you will need to make sure that New York State has jurisdiction over the case.  Domestic Relations Law Section 230 lists the various circumstances which support New York State jurisdiction over a divorce. The phrase "the cause occurred in this state" refers to the cause of action for divorce, which means the grounds for the divorce.

Beginning in mid-October 2010, spouses in New York State will have another option.  The no-fault divorce legislation signed by Governor Paterson in August 2010, effective sixty days later, creates a new cause of action, Section 170 (7) of the Domestic Relations Law, which permits either spouse to bring the action for divorce based on the irretrievable breakdown of the marriage for a period of six months or longer.  New York State has lagged behind the rest of the nation for many years in implementing no-fault divorce, but beginning in October 2010, that will change.