Grounds for Divorce in New York

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Divorce may be defined as the legal termination of a marriage. In the United States, married couples do not have a legal or a constitutional right to seek a divorce, although many states grant them on the basis of public policy.  No-fault and fault are the two types of grounds, or justifications, for a divorce in the United States. America first adopted the concept of a no-fault divorce in the late 1960s, and by 1985, all of the states, except for New York, allowed some form of it. It is possible to obtain a no-fault divorce in New York, but only after filing a fault-based separation agreement with the Supreme Court.

 

New York is the only state in the union that does not have a provision for a no-fault divorce. In some states, no-fault is the only acceptable justification for a divorce, even if fault grounds exist within the marriage. The other states allow the members of the couple to select either a no-fault or a fault divorce, but only certain states allow fault grounds for divorce.

 

According to New York law, grounds of fault that must be proven in order to obtain a divorce include the following:

 

  • Cruel or inhumane treatment involving either physical or mental cruelty
  • Abandonment of one’s spouse for one or more years without justification
  • Imprisonment for three or more years (time must be served before the divorce action can be brought
  • Adultery as testified to by a witness (not the spouse seeking the divorce)

 

New York law recognizes four defenses to adultery, and if any can be proven, the divorce will not be granted. These defenses include the following: “procurement,” which means one spouse encouraged the other spouse to commit adultery; “condonation,” which is condoning the wrongful actions of one’s spouse (having sexual relations with him or her after the discovery of his of her adulterous actions might constitute condonation); “statute of limitations,” which provides five years from the initial discovery of adultery to bring the divorce into action; and “recrimination,” which applies when both spouses have committed adultery. If recrimination is proven, neither party can get a divorce from the other on the basis of adultery.

 

In New York, living apart or being separated without a formal written separation agreement is not a justification for divorce.  If a couple is separated, there are only two valid ways to dissolve the marriage, and both require a separation of one or more years. To obtain a divorce after at least a year of separation, a couple must have either a separation agreement or a separation judgment.

 

A separation agreement is a document typically prepared by an attorney. It states that the couple plans to remain separated for the remainder of their lives and sets forth the agreement upon which they plan to handle issues such as child custody, visitation, spousal support, and marital property.

 

A separation judgment is granted by the New York Supreme Court, and is based on the same four fault grounds that a divorce would be: cruelty, abandonment, imprisonment, and adultery. The grounds for abandonment may be less than one year. One additional ground for a separation judgment is non-support.

 

One year after the separation judgment has been filed, the couple has the option of suing for a no-fault divorce, based upon the one year lived apart. The divorce is not automatic, and court action must be taken. This somewhat indirect method is the only way that a couple can secure a no-fault divorce in New York. Go to Legal Match for a discussion on the pros and cons of New York divorce law.

 

*An example of a New York Divorce Settlement Agreement can be seen on Free Legal Aid. 

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