Frequently Asked Questions

Do I need to live in New York to file for Divorce in New York?

Before you can obtain a divorce in New York State, you must meet one of the following residency requirements:

  • The parties resided in New York as husband and wife, and either party lived in New York for one year or more prior to filing.
  • The cause of action occurred in New York, and either party lived in New York for one year or more prior to filing.
  • The cause of action occurred in New York, and both parties live in New York at the time of filing.
  • Either party has lived in New York for two years or more prior to filing.

The court cannot maintain jurisdiction over a divorce action unless one of these five residency requirements exists. Any challenge to residency must be raised during the divorce proceedings, and will not be entertained post judgment.

I have wanted to file for divorce for a long time, but I was told that I did not have "grounds" for divorce. I heard that New York now has an "Irreconcilable Differences" ground for divorce, what does that mean for me?

In August 2010, the New York State legislature passed an Irretrievable Breakdown of the marriage ground for divorce. The Irretrievable Breakdown ground for divorce became effective on October 12, 2010. In order to take advantage of this ground, the plaintiff must state under oath that the marriage has been broken down for a period of six months. There is no requirement that you and your spouse be living separate and apart for six months, only that the marriage has not been working for that period of time.

All financial, and child custody issues, if any, must be resolved in order for a divorce to be granted on this ground. This means that any support, equitable distribution and custody issues must be settled before you can get divorced. This is where your need for a competent divorce attorney arises.

Can I start a divorce against my spouse when I reside in New York, but my spouse does not reside in the country?

The short answer to this question is, generally, yes, however, this is a complicated issue and it is important for you to speak with an experienced attorney about the issues of service of process on your spouse pursuant to international law. When the country in which your spouse is to be served is a signatory to the Hague Service Convention, the documents to be served will need to be translated into the official language of that country and presented to a Central Authority authorized to effectuate service in that country. This is often a lengthy process, which includes the translation of legal documents, shipping of those documents abroad, and locating your spouse. Attorney Dow has experience organizing the service of international process and welcomes the opportunity to help you serve your internationally located spouse.

Can my spouse transfer property or remove my name from insurance policies during our divorce proceedings?

In September 2009, the New York State legislature enacted new Automatic Restraining Orders which prevent parties from incurring unreasonable debt, spending unreasonable amounts of money, with the exception of the payment of regular bills and reasonable legal fees, from transferring property, removing or terminating insurances, etc. during the divorce. These orders are automatically binding upon the plaintiff, and become binding upon the defendant, once he or she is served with the documents initiating the divorce.

Can the Family Court divide our property without us going through a divorce?

No, the Family Court does not have the power to divide marital property. Only the Supreme Court has the jurisdiction to distribute property and to grant divorces.

My child is 6 years old, and my former partner is not paying child support; is it too late for me to seek support at this time?

No, it is not too late. Your child is entitled to receive child support until age 21, you can file for child support for the child at any time before the child reaches the age of 21. With that said, all cases fact sensitive and you may want to consult with Attorney Dow before filing an application.

I just got served with a Temporary Order of Protection, does this mean that I cannot see or call my children?

If you have been served with a Temporary Order of Protection, you need to be careful about the interaction you have with the person protected by that order. It is important for you to review the terms of that order with an experienced family law attorney before you do anything. This will ensure that you are conducting yourself in accordance with the terms of the order and that you remain free of the threat of criminal prosecution.

After you consult with Staten Island Divorce Lawyer A. Sheralynn Dow, you will be better able to plan your next steps with respect to obtaining visitation with your children. This visitation request must be made in as a separate request to the court.