Grounds For A Divorce in New York State
No Fault Divorce
Recently, New York State became the last state in the country to adopt some form of “No Fault” Divorce. For divorce actions started on or after October 12, 2010, in addition to the “fault” based grounds mentioned below, a spouse may be granted a divorce, provided that one party states under oath that the relationship between husband and wife has been “irretrievably broken” for a period of at least six months.
The amendment to the Domestic Relations Law further provides that a judgment of divorce cannot be granted unless and until all economic issues relating to property distribution, the payment or waiver of spousal support (eg. alimony/maintenance), child support, custody, visitation, and attorney’s fees have been resolved by the parties.
A spouse who has been abandoned by his or her partner for at least one year immediately prior to the commencement of a divorce action can use this as a basis for divorce. This term may apply to situations where there has been a physical abandonment, meaning one spouse has simply left the other, as well as to situations where one spouse has refused to engage in sexual relations with the other spouse for at least one year immediately prior to the commencement of a divorce action, despite repeated requests for sexual relations, assuming that neither husband or wife has a disability which would prevent them from having sexual relations with the other and is commonly known as “Constructive” Abandonment. Prior to the passage of New York State’s “No Fault” legislation, this was the most common grounds used for a divorce, although frequently it required both spouses to lie in order to obtain a divorce.
Cruel and Inhuman Treatment
This ground is used when there has been instances of physical or mental cruelty inflicted upon you within the last five years, to the extent that it is unsafe and improper to continue the marriage. In a long term marriage (generally over ten years), more proof of such treatment are required than in a marriage of short duration.
Rarely used as a ground for divorce as there are usually other, less expensive grounds that can be used. Adultery is commonly proven by circumstantial evidence to show that the cheating spouse had the inclination and opportunity to commit adultery. If, you have sexual relations with your spouse after you discover that he or she has committed adultery, you have “forgiven” (or condoned) it, and you will not be granted a divorce on this ground. Similarly, if both spouses are committing adultery, a divorce cannot be granted on this ground.
Living Separate and Apart Pursuant to a Separation Agreement
Prior to the passage of New York State’s “No Fault” law, a spouse could use this ground if the parties lived apart for one year or more pursuant to a Separation Agreement (a contract between the parties, usually negotiated by lawyers) and the spouse seeking the divorce substantially complied with the terms of the Separation Agreement.
Living Separate and Apart Pursuant to A Judgment of Separation
If you and your spouse have lived apart for a year pursuant to the terms of a Separation Judgment, you may obtain a divorce based upon that fact alone, provided that the party seeking the divorce has substantially performed all obligations of the Judgment of Separation. This ground for a divorce is rarely used in New York State, as a spouse must prove one of the “fault” based grounds to obtain a Judgment of Separation.
This ground for a divorce may be used if your spouse has actually spent three or more years in prison immediately prior to the commencement of a divorce action.
Other Basics on Obtaining a Divorce in New York
Divorce actions are generally commenced in the Supreme Court situated in the county where one or both of the parties resides. For instance, if the parties reside in Nassau County, the divorce is commenced in Nassau County Supreme Court, whereas if the parties reside in Westchester, the divorce action will be commenced in Westchester Supreme Court.
Importance of Consulting a Divorce Attorney
Though sometimes individuals obtain a divorce without legal assistance, if you have children, substantial assets, or will need financial assistance from your spouse once the marriage is dissolved, it is best for you to consult a divorce attorney to learn your rights and the various options that you have concerning these matters. Remember, if children are involved, it is not just your rights that will be affected.
Michael A. Cohen can consult with you to answer any questions you may have. Please call 516-280-6806