Grounds for Divorce in New York

Grounds for Divorce in New York

Up until July 2010, New York recognized divorces only upon fault-based criteria, though the parties could have agreed to enter into a separation and have the separation agreement or judgment be the further basis for a divorce after one year. The parties could also agree to an uncontested divorce as long as one of the parties was willing to allege one of the fault based grounds or has the requisite separation agreement or judgment.

However, the state Senate on June 30, 2010, approved a No-Fault Divorce bill. The State Assembly also passed the No-Fault Divorce bill on July 1, 2010, and the Governor has signaled that he intends to sign it into law.

The new law, which is to be signed any day now, will amend the current law adding a new No-Fault ground for divorce - IRRETRIVABLE BREAKDOWN OF THE MARRIAGE.

Grounds for Divorce

The cause of action for divorce in New York State are limited to:

Cruel and inhuman treatment (Domestic Relations Law §170.1) Abandonment for a continuous period of one year or more (DRL §170.2) Imprisonment for more than three years subsequent to the marriage (DRL §170.3) Adultery (DRL §170.4) Conversion of a separation judgment (DRL §170.5) Conversion of a written and acknowledged separation agreement after living separate and apart for more than one year (DRL §170.6)

One or more of these grounds for divorce must be used if one party to the marriage wants a divorce. The parties can also disagree over other issues such as child support, custody, spousal support and the division of joint assets. These are known as "ancillary relief" that are requested by one or both of the parties. All divorces, even by uncontested consent, must be a based on one of the six grounds stated above.

The grounds do not include accusations of bad conduct against the plaintiff unless such bad conduct rises to the level of cruel and inhuman treatment. In New York none of the following are grounds for divorce:

Irreconcilable differences Incompatibility No-fault Mutual consent No communication

Although, as stated above, any day now, another ground is to be added to the list:

"Irretrievable Breakdown of the Marriage".

Litigants, attorneys, and judges have expressed frustration at the continued failure of the New York legislature to implement no-fault divorce. New York is the only jurisdiction in the United States that does not offer a no-fault basis for divorce. The ground that comes closest to no-fault is DRL 170.5, which requires that the parties live separate and apart for a minimum period of one year after the execution of a separation agreement.

Cruel and inhuman treatment

Cruel and inhuman treatment must be behavior by the defendant that rises to the level such that it makes it improper for the plaintiff to continue to reside with the defendant as husband and wife. Allegations under this ground include allegations of domestic violence and repeated, extreme mental cruelty. In New York, the longer the duration of the marriage the more severe the level of cruelty must be in order to establish grounds under cruel and inhuman treatment.

Abandonment

Abandonment may be actual or constructive. Actual abandonment is usually one spouse leaving the marital residence without the consent of the other spouse without intention to return. One spouse may also lock out the other spouse from the marital residence. Constructive abandonment is the refusal of "basic obligation arising from the marital contract," including a cessation of sexual relations; establishing such a prior constructive abandonment may render the spouse who leaves, or locks out the other, as the innocent spouse.

Adultery

Adultery is difficult to prove as it requires corroborating evidence from a third party; thus a statement by the defendant that he or she had sexual relations with a third party is not legally admissible to permit the court to grant a divorce to the plaintiff.