Grounds For Divorce in New York
On August 15, 2010, Governor David Paterson signed no fault divorce into law in New York state.
Until 2010, New York recognized divorces only upon fault-based criteria, though the parties might agree to enter into a separation and have the separation agreement or judgment be the further basis for a divorce after one year. The parties might also agree to an uncontested divorce as long as one of the parties is willing to allege one of the fault based grounds or has the requisite separation agreement or judgment.
The state Senate on June 30 approved a No-Fault Divorce bill. The State Assembly also passed the No-Fault Divorce bill on Thursday, July 1, 2010, and the Governor has signed it into law.
Grounds for divorce in New York
The cause of action for divorce in New York state (accusations against the defendant by the plaintiff that are grounds for divorce) 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)
- The relationship between husband and wife has broken down irretrievably for a period of at least six months (DRL §170.7)
Prior to 2010 when no-fault divorce became legal in New York, one or more of these grounds for divorce had to be used if one party to the marriage wanted a divorce. Now, no-fault divorce can be done by mutual consent without any of the previously-required grounds.
The parties might also disagree over child support, custody, alimony, division of joint assets or who is going to pay legal fees. These are known as “ancillary relief” (see below) that are requested by one or both of the parties.
For more information regarding filing for divorce in New York, please see “Divorce in New York – How to Get Started.“
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 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 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.