No-Fault Divorce Explained

New York was the last state to allow a divorce without proving that one spouse did something wrong. That changed on October 12, 2010, when Domestic Relations Law § 170(7) took effect. Since then, a spouse can obtain a divorce by swearing under oath that the marriage has broken down irretrievably for at least six months. No adultery, no cruelty, and no abandonment need be shown.

The ground itself is simple. The rest of the case is not. A New York court will not sign a no-fault judgment until property, support, custody, and counsel fees have been settled or decided. This page explains what the statute requires, who may file, how the case moves through Supreme Court, what it costs, and where clients most often run into trouble.

What Domestic Relations Law § 170(7) Actually Says

DRL § 170 lists seven grounds for divorce. The first six are fault-based or require a prior separation:

• § 170(1): cruel and inhuman treatment
• § 170(2): abandonment for one year or more
• § 170(3): imprisonment for three or more consecutive years after the marriage
• § 170(4): adultery
• § 170(5): living apart for one year or more under a judgment of separation
• § 170(6): living apart for one year or more under a written separation agreement

Subdivision (7) is the no-fault ground. It permits a divorce where "the relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath." The statute then adds a condition that controls the timing of nearly every case: no judgment may be granted "unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce."

Two points follow from the text. First, the six months run before the case is filed, and the spouses do not need to live in separate homes during that time. A couple can share an apartment for financial reasons and still qualify. Second, the ground ends the marriage, but it does not end the dispute. Every financial and parenting question must be resolved before the judge signs.

Can the Other Spouse Contest the Breakdown?

Shortly after the statute passed, trial courts split on whether a defendant could demand a trial on whether the marriage had truly broken down. Appellate courts have since answered the question. In Palermo v. Palermo, 100 A.D.3d 1453 (4th Dep't 2012), the court held that a plaintiff's sworn statement of irretrievable breakdown is sufficient by itself, and the defendant is not entitled to a hearing on the point. The First Department reached the same conclusion in Hoffer-Adou v. Adou, 121 A.D.3d 618 (1st Dep't 2014).

In practice, this means one spouse can obtain a divorce in New York over the other's objection. The objecting spouse keeps every right to litigate money and children, but cannot keep the marriage alive by denying that it has failed.

Residency Requirements Under DRL § 230

Before a New York court will hear a divorce, at least one spouse must satisfy DRL § 230. Any one of the following is enough:

1. The couple married in New York, and either spouse has lived in the state continuously for at least one year immediately before filing.
2. The couple lived in New York as spouses, and either spouse has lived in the state continuously for at least one year before filing.
3. The ground for divorce arose in New York, and either spouse has lived in the state continuously for at least one year before filing.
4. The ground for divorce arose in New York, and both spouses are New York residents on the day the case is filed.
5. Either spouse has lived in New York continuously for at least two years immediately before filing.

Worked example: A couple married in New York in 2015, moved out of state in 2019, and one spouse returned alone to Brooklyn in February 2024. That spouse may file under § 230(1) once one full year of continuous residence has passed, meaning on or after February 2025. If they had married elsewhere and never lived together in New York, the returning spouse would instead need two years under § 230(5).

Residency is the most common jurisdictional objection in a New York divorce. If your spouse lives in another state or challenges where the case belongs, see our page on New York divorce jurisdiction disputes.

How a No-Fault Divorce Is Filed

Divorces in New York are heard in Supreme Court, not Family Court. Family Court can decide custody and support, but only Supreme Court can dissolve a marriage. The steps below apply to both uncontested and contested no-fault cases.

Step 1: Purchase an Index Number

The plaintiff files a Summons with Notice or a Summons and Verified Complaint with the County Clerk and pays the index number fee of $210. The summons must state that the action is for a divorce and must identify the ground, here DRL § 170(7). The complaint or notice also lists the ancillary relief sought: equitable distribution, maintenance, child support, custody, and counsel fees. Relief not requested can be difficult to add later.

Step 2: Serve the Defendant

Under DRL § 232, the summons must be personally delivered to the defendant. Mail and substitute service are not permitted without a court order. The plaintiff cannot serve the papers personally; a process server, friend, or relative over 18 who is not a party must do it. Service must be completed within 120 days of filing under CPLR 306-b.

The summons is served together with the Notice of Automatic Orders required by DRL § 236(B)(2)(b) and 22 NYCRR 202.16-a. Once served, neither spouse may transfer or encumber marital assets, change beneficiaries on life insurance, remove the other from health coverage, or run up unusual debt while the case is pending. Violations can be punished as contempt.

Step 3: The Defendant's Response

A defendant personally served in New York has 20 days to appear or answer. A defendant served outside the state has 30 days. If the defendant does nothing, the plaintiff may proceed on default after the response period expires. In an uncontested case, the defendant instead signs an Affidavit of Defendant (Form UD-7) agreeing to the divorce and waiving further notice, which allows the case to proceed immediately.

Step 4: Financial Disclosure

DRL § 236(B)(4) makes financial disclosure compulsory in any case where maintenance or equitable distribution is at issue. Each spouse completes a sworn Statement of Net Worth in the form required by 22 NYCRR 202.16(b), listing income, expenses, assets, and liabilities, with a recent tax return and pay stubs attached. In an uncontested case, the parties may waive the exchange in writing if they have already settled all financial terms. In a contested case, the Statement must be exchanged before the preliminary conference.

Step 5: Request for Judicial Intervention and Conferences

When a judge is needed, either party files a Request for Judicial Intervention (RJI) with a $95 fee. Under 22 NYCRR 202.16(f), the court must hold a preliminary conference within 45 days of the RJI. At that conference, the judge sets a schedule for discovery, appraisals, and motions, and may enter temporary orders on support, custody, and payment of expenses.

Step 6: Note of Issue and Judgment

Once all issues are settled or decided, the plaintiff files a Note of Issue with a $125 fee and submits the proposed Findings of Fact, Conclusions of Law, and Judgment of Divorce. In an uncontested case, these papers are usually reviewed by a matrimonial clerk and then signed by a justice without a court appearance. The marriage ends on the date the judgment is signed and entered, not the date the case was filed.

Total Court Fees

Parties who cannot afford these fees may apply for a poor person's order under CPLR 1101. Attorney fees are separate and vary with the complexity of the financial and custody issues.

The Economic Issues That Must Be Resolved First

Because DRL § 170(7) bars a judgment until the ancillary issues are settled or decided, the following four areas determine how long a no-fault divorce takes.

Equitable Distribution

DRL § 236(B)(5) divides property into two classes. Separate property, including assets owned before the marriage, inheritances, gifts from third parties, and personal injury compensation, stays with the spouse who owns it. Marital property, which is everything else acquired during the marriage regardless of whose name is on the title, is divided equitably. Equitable does not mean equal. The court weighs the factors in § 236(B)(5)(d), including the length of the marriage, each spouse's income and property at the time of marriage and at filing, the loss of health insurance or inheritance rights, and each spouse's contributions as a wage earner or homemaker.

Fault is generally not a factor. New York courts have long held that marital misconduct affects property division only when it is so egregious that it shocks the conscience, and ordinary infidelity does not meet that standard. Since 2020, however, § 236(B)(5)(d)(14) directs the court to consider domestic violence committed against the other spouse. If abuse is part of your history, our page on domestic violence and divorce in New York explains how it affects the financial outcome.

Spousal Maintenance

DRL § 236(B)(6) contains a guideline formula for post-divorce maintenance, and § 236(B)(5-a) contains a nearly identical formula for temporary maintenance while the case is pending. The formula applies to the payor's income up to a cap, which is $228,000 as of March 1, 2024, and adjusts every two years.

Worked example (no child support being paid): The higher-earning spouse makes $120,000; the other makes $40,000. The court calculates two figures. First, 20% of the payor's income ($24,000) minus 25% of the payee's income ($10,000) equals $14,000. Second, 40% of combined income ($64,000) minus the payee's income ($40,000) equals $24,000. The guideline amount is the lower figure: $14,000 per year, or about $1,167 per month. Where the payor is also paying child support, the percentages shift to 30% and 20%.

Duration follows an advisory schedule in § 236(B)(6)(f): 15% to 30% of the marriage's length for marriages up to 15 years, 30% to 40% for 15 to 20 years, and 35% to 50% for marriages over 20 years. The court may deviate from both amount and duration by stating its reasons on the record. Spouses who left the workforce to raise children should read our page on divorce for stay-at-home spouses in New York, which addresses how courts treat lost earning capacity.

Child Support

The Child Support Standards Act, DRL § 240(1-b), sets basic child support as a percentage of combined parental income up to a cap of $183,000 (as of March 1, 2024): 17% for one child, 25% for two, 29% for three, 31% for four, and no less than 35% for five or more. The non-custodial parent pays their pro rata share.

Worked example: Combined income is $150,000 with two children. Basic support is 25%, or $37,500 per year. If the non-custodial parent earns $120,000, that parent's share is 80%, or $30,000 per year ($2,500 per month), plus a proportional share of health insurance, child care, and unreimbursed medical costs.

Custody and Parenting Time

Custody is decided under the best interests standard in DRL § 240. Parents may agree to any arrangement the court finds acceptable; absent agreement, the court decides after considering each parent's caregiving history, home stability, ability to cooperate, and any history of abuse. Where safety is a concern, a temporary order of protection can be issued within the divorce itself. See orders of protection in New York divorce.

Uncontested vs. Contested: What Determines the Timeline

An uncontested no-fault divorce is one where both spouses have signed a written settlement agreement covering every ancillary issue. The agreement must be signed and acknowledged with the same formality as a deed under DRL § 236(B)(3). Once the papers are complete, court processing time in most counties runs from about three to six months, depending on clerk backlog. No one testifies and no one appears.

A contested case is one where any single issue remains open. The parties exchange financial disclosure, may retain appraisers for real estate, businesses, or pensions, attend compliance conferences, and, if necessary, proceed to trial. Twelve to twenty-four months is typical, and complex asset cases run longer. Many couples who start contested move to settlement through negotiation or divorce mediation, which can shorten the case considerably.

Frequently Asked Questions

Do we have to live apart for six months before filing?

No. The statute requires that the relationship has broken down for six months, not that the spouses have lived separately. Spouses often remain under the same roof until the case is filed or the home is sold.

Can I still file on a fault ground if I want to?

Yes. DRL § 170(1) through (6) remain in force. Fault grounds rarely offer a practical advantage, since fault does not affect property division except in egregious cases, and proving fault adds time and expense. Some clients choose a fault ground for personal reasons, and that remains their right.

What if we were never validly married?

If the marriage was void or voidable because of bigamy, fraud, incapacity, or age, the correct proceeding may be an annulment rather than a divorce. Our page on annulment vs. divorce in New York compares the two.

Does a no-fault divorce affect my Social Security or taxes?

The ground for divorce does not, but the timing may. A former spouse can claim derivative Social Security benefits only if the marriage lasted at least ten years; a divorce finalized in year nine forfeits that right. Maintenance payable under agreements executed after December 31, 2018 is neither deductible by the payor nor taxable to the recipient under federal law, which changes how settlement figures should be negotiated. See our pages on Social Security benefits after divorce and tax implications of divorce in New York.

What is the religious divorce clause in the papers?

DRL § 253 requires a plaintiff who was married in a religious ceremony to swear that they have taken, or will take, all steps within their power to remove any barrier to the defendant's remarriage. For couples married in a Jewish ceremony this generally refers to the delivery of a get. The court cannot enter judgment without this sworn statement.

What if my spouse refuses to sign anything?

A spouse cannot block a no-fault divorce by refusing to cooperate. If your spouse is served and does not respond, you may proceed on default after the response period expires, and the court will decide property, support, and custody on the record you present. If your spouse does respond but contests the financial terms, the case proceeds as contested and the judge decides whatever you cannot agree on.

You can contact the Law Offices of Albert Goodwin by phone at 212-233-1233 or by email at [email protected].