Grounds For DivorceMarch 14, 2012
Until October 12, 2010, New York was the only U.S. state without some variation of no fault divorce. Since the enactment of New York’s No-Fault Divorce statute, there are now seven grounds for divorce in New York.
GROUNDS FOR DIVORCE IN NEW YORK UNDER DOMESTIC RELATIONS LAW § 170
- The cruel and inhuman treatment of the plaintiff by the defendant;
- Abandonment of the plaintiff by the defendant for a period of at least one year;
- Adultery, which is defined as the voluntary commission of an act of sexual intercourse with a person other than the plaintiff during the marriage of the parties;
- Living apart pursuant to a separation judgment for a period of at least one year;
- Living apart pursuant to a separation agreement for a period of at least one year; and
- Irretrievable breakdown of the marriage for a period of at least six months, provided that one party has so stated under oath.
GROUNDS AND BURDEN OF PROOF IN DIVORCE CASES
One or more grounds must be proven by the Plaintiff (the party seeking the divorce/the party who commences the action for divorce) in order to obtain a divorce in New York State. Prior to the October 2012 amendment, many people who wanted to get a divorce simply because the marriage “wasn’t working” were unable to do so. Domestic Relations Law § 170 (7) now provides that a divorce may be granted where one party to the marriage states under oath in pleadings that the marriage has broken down irretrievably. The burden of proof, therefore, is significantly lower for Plaintiffs seeking divorce pursuant to § 170 (7) than was historically the case for the other grounds for divorce.
Cruel and Inhuman Treatment:
Domestic Relations Law § 170 (1) provides that a divorce may be granted where “[t]he cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant”. For the ground of cruel and inhuman treatment to be satisfied, the plaintiff must show that the defendant has engaged in serious misconduct; “mere incompatibility” will not satisfy this ground. Domestic Relations Law § 170 (1) requires a finding of fault and thus a showing of irreconcilable or irremediable differences is insufficient by itself. See, e.g.,
Brady v. Brady, 64 N.Y.2d 339, 342 (1985); Hessen v. Hessen, 33 N.Y.2d 406, 411 (1974).
Abandonment is a refusal on the part of one spouse to fulfill basic obligations arising from the marriage contract. Three types of abandonment are recognized in New York: (1) unjustified physical departure from the marital residence without an intention on the part of the departing spouse to return (Berg v. Berg, 289 N.Y. 513 (1943)); (2) unjustified total exclusion of the other spouse from the marital residence (Schine v. Schine, 31 N.Y.2d 113 (Ct. App. 1972)); and (3) constructive abandonment, the unjustified failure or refusal of one spouse to engage in sexual relations with the other spouse. (Diemer v. Diemer, 8 N.Y.2d 206 (1960)).
Confinement of the defendant in prison for a period of at least three consecutive years:
An action for divorce may be maintained on the ground of the defendant’s confinement in prison for a period of at least three consecutive years pursuant to Domestic Relations Law § 170 (3). This ground is relatively straightforward and requires that the marriage be entered into before the confinement of the defendant spouse to prison; thus prohibiting a spouse who willingly and knowingly entered into a marriage with a person who is confined to prison from later seeking a divorce on the ground that his or her spouse under this ground.
Adultery is defined under Domestic Relations Law § 170 (4) as the voluntary commission of an act of sexual intercourse with a person other than the plaintiff during the marriage of the parties. Adultery is a class B misdemeanor in New York State. Penal Law § 255.17 provides that “[a] person is guilty of adultery when he engages in sexual intercourse with another person at a time when he has a living spouse, or the other person has a living spouse.” Adultery was traditionally a difficult, and at times, expensive ground to prove as the offending spouse often keeps his or her adulterous behavior a secret.
Living apart pursuant to a separation judgment for a period of at least one year:
According to Domestic Relations Law § 170(5): “[a] divorce action may be maintained upon the ground that the husband and wife have lived apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment, and satisfactory proof has been submitted by the party who seeks the divorce that he or she has substantially performed all the terms and conditions of the separation decree or judgment.” In order to satisfy this ground, the Plaintiff would have had to seek a separation judgment from a court of competent jurisdiction. The grounds for separation, notably, are quite similar to the grounds for divorce (compare, Domestic Relations Law § 200 and Domestic Relations Law § 170).
Living apart pursuant to a separation agreement for a period of at least one year:
DRL § 170 (6) provides that a divorce action may be maintained where: “[t]he husband and wife have lived separate and apart pursuant to a written agreement of separation, subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded, for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such agreement.” This subsection truly allows for a “conversion divorce” in that the parties’ validly executed formal agreement can serve as the basis for their divorce, essentially converting to the separation agreement to a stipulation of settlement in an action for divorce after one year of living pursuant to the terms of the validly executed agreement. Sagan v. Sagan, 53 N.Y.2d 635 (1981).
Irretrievable breakdown of the marriage for a period of at least six months:
DRL § 170 (7) allows for divorce to be granted where: “[t]he 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. No judgment of divorce shall be granted under this subdivision 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.” This no fault ground allows a divorce to be granted where the parties simply do not wish to remain married, however, requires that all financial issues and custody/visitation issues be resolved before a divorce can be granted pursuant to this ground.
Individuals wishing to commence a divorce action against their spouse or whose spouse has commenced an action against them should contact an experienced, professional Westchester Matrimonial Attorney today to discuss your options and rights in moving forward!
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AuthorJessica H. Ressler
Jessica H. Ressler has been practising exclusively matrimonial and family law for the past ten years in New York. She is a member of the panel for attorneys for children in Westchester and Putnam Counties. She appears regularly in the New York Family and Supreme Courts representing both adults and children.