What is a divorce? Divorce is the final, legal ending of a marriage by court order. If you have a divorce case in court, you may hear lawyers and court staff call it a matrimonial action. The person who starts the divorce is called the plaintiff, and the other spouse is called the defendant.
In the State of New York, the Supreme Court is the only court that handles divorce cases, and a Supreme Court judge is the only person who can legally grant a divorce. A person cannot get a divorce in Family Court. Although a Family Court judge cannot grant a divorce, a person can go to his or her local Family Court for help with child support, child custody, child visitation, spousal support (also known as spousal maintenance), and paternity.
In some cases, a person may seek and obtain an annulment of his or her marriage. Unlike a divorce that ends a valid marriage, an annulment establishes that the marriage is not legally valid. The grounds for annulment are different from those of a divorce. To get an annulment, you will need to prove ONE of the following:
• Bigamy: one of the parties was still married to someone else at the time of the second marriage;
• Either spouse was incurably unable to have sexual intercourse at the time of the marriage;
• After marriage, either spouse becomes incurably insane for five or more years;
• One of the spouses is unable to understand the nature, effect, and consequences of marriage because of mental incapacity;
• One spouse agreed to marry as a result of force or duress employed by the other, or
• Fraud (most common ground): the consent to marry was obtained by fraud that would have deceived an ordinarily prudent person and was material to obtaining the other party’s consent. The fraud must go to the essence of the marriage contract. For example: Before marrying, each spouse said that he or she wants to have children, but after the marriage, the person took a contrary position on the subject of children.
Does a person need an attorney to get divorced?
Because divorce law can be complicated, at the very least you should meet with a lawyer, even if you think your divorce will be uncontested.
