Divorce

“Grounds” are legally acceptable reasons for a divorce. In New York, there is a “no-fault” divorce ground and fault-based divorce grounds.

No-fault ground: You can get a “no-fault” divorce if, according to either party, the marriage has “broken down irretrievably” for a period of at least six months (in other states, the common term used is “irreconcilable differences.”) You do not have to be separated for 6 months, you just have to allege that the marriage has been completely broken down for at least the past 6 months. Note: A judgment of divorce will not be granted under this ground until the following issues are resolved by the parties, or determined by the court and incorporated into the judgment of divorce:

• equitable distribution (division) of marital property;
• the payment or waiver of spousal support;
• the payment of child support;
• the payment of counsel and experts’ fees and expenses; and
• the custody and visitation of any minor children of the marriage.¹

Fault-based grounds: In New York, you can file for a fault-based divorce for any of these reasons:

• Cruel and inhuman treatment – This includes physical, verbal or emotional abuse that endangers your physical or mental well being to the point that it is “unsafe or improper” for you to live with the abuser. The judge will require more than that you simply did not get along with one another. The judge will be looking for specific instances of cruelty that occurred in the last five years.²
• Abandonment – Your spouse must have abandoned you for a period of at least one year. Specific examples of abandonment by your spouse include a physical move from the home or locking you out of the home. Also, if your spouse has refused to engage in sexual relations with you for at least one year, this can also qualify as abandonment and is known as “constructive abandonment.”
• Imprisonment for three consecutive years - Your spouse must have been in prison for three or more years in a row but the sentence must have begun after your marriage. Once your spouse has been in prison for three years in a row, you can file for divorce:
  • while your spouse is still in prison; or
  • up to five years after s/he is released.
• Adultery – You must be able to show that your spouse committed adultery during the marriage. This is usually hard to prove in court, since you need evidence from a third party - someone besides you or your spouse.³

Divorce after a legal separation agreement - A divorce after a separation agreement is another basis (ground) for a divorce. You do not have to have one of the fault-based grounds listed above. To file for divorce, you and your spouse must either have filed a valid separation agreement (which we recommend having an attorney write up for you since there are many specific requirements that it must meet to be valid) or one spouse can file for a court ordered-judicial separation. You also must live separate and apart for one year after the agreement or judicial order before you can be divorced.⁴ To understand what needs to be in a separation agreement in order for it to be considered a ground for divorce, it is best to consult a lawyer.

¹ NY Dom Rel Law § 170(7)
² NY Dom Rel Law §§ 170(1), 210
³ NY Dom Rel Law § 170(2) - (4)
⁴ NY Dom Rel Law § 170(5), (6)