Under section 170 of the New York State Domestic Relations Law, New York State requires grounds for divorce. One of the grounds is the confinement of the defendant in prison, but such must be for a period of three or more consecutive years after the marriage of plaintiff and defendant. There are other grounds as well such as cruel and inhuman treatment, abandonment, adultery, living apart according to a decree or judgment of separation for a period of 1 or more years, or the husband and wife have separated according to a written agreement of separation for a period of 1 or more years after the execution of the agreement.
Custody of the children will be determined during the mediation in the event you decide to mediate, or by the judge, in the event, you must go to court.
If you are serious about pursuing a divorce, you should first discuss the matter with your husband to see whether he will consent to an uncontested divorce. In any case, you should contact Divorce Solutions at 212-370-1660 to see if we can be of more specific help to you.