New York now has no-fault divorce
Grounds for Divorce – New York has, at long last, joined the other 49 states and adopted a true no-fault basis for divorce, adding it to the fault grounds that have been the basis for divorce for many years. Other than in certain limited circumstances where financial matters in a divorce might be impacted by egregious fault there is really no advantage to seeking a divorce under one of the fault grounds and as those, if challenged, are subject to a trial, the benefit of a virtually unchallengeable no-fault divorce is clear. The grounds for divorce are:
Irretrievable breakdown of the relationship for more than six months
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No-Fault Divorce
New York's true no-fault divorce was created as an additional ground for matters
commenced on or after October 12, 2010.
Spouses may be granted a divorce in a timely fashion, provided that one party has stated under oath that the relationship between husband and wife has been irretrievably broken for a period of at least six months. The one limitation is that a judgment of divorce cannot be granted unless and until the economic issues relating to equitable distribution (property), support (spousal and child), professional fees (counsel and experts) and expenses and custody and visitation issues are resolved by the parties, or determined by the court.
There are questions as to how the language of the statute which appears to require the sworn statement of just one spouse to serve as proof of the breakdown will reconcile against the constitutional right to a trial on the issue of grounds, but it will take a while until the appellate courts have had a chance to interpret the law to resolve this and many other questions about the new law.
Note: Other than in situations where significant domestic violence can be shown or an appellate interpretation that takes no-fault and creates a question as to whether it is the unchallengeable basis for a divorce it is believed currently to be, the use of one of the 'fault' grounds below will serve no beneficial purpose and may make the pursuit of the divorce more time consuming, more costly and, sometimes, more difficult to obtain.
Abandonment for one or more years
Physical abandonment means that your spouse has left without justification or
your consent and has not offered in good faith to return.
Constructive abandonment, an abandonment for the purposes of establishing grounds for divorce, means that your spouse has refused to have sexual relations for more than one year without a physical or mental reason for doing so.
Adultery
This ground for divorce is seldom used. Even if your spouse agrees not to
contest your divorce action, proof of adultery is frequently difficult. You will need
witnesses, as your testimony alone is not legally sufficient against your spouse.
Adultery is usually shown by circumstantial evidence in that the spouse had the
opportunity, inclination, and intention to engage in sex with another within the
last five years. Courts will frequently not grant divorces where there are mutual
acts of adultery.
Having sexual relations with your spouse after the discovery of the adultery is interpreted as forgiveness (legally known as condonation) and will bar the granting of a divorce, if proved.
Cruel and Inhuman Treatment
Physical or mental cruelty that has had such a serious effect on your physical
or mental health that it is unsafe or unwise to continue the marriage. Cruel and
inhuman treatment can involve either physical or mental abuse. If your marriage
is long-term, you will have to provide more examples of such treatment than if
you have been married a short time.
Imprisonment for three or more years
You cannot bring this action until your spouse has actually spent three or more
years in prison.
Living apart pursuant to a Separation Agreement
Provided that you have lived apart for a year after signing your separation
agreement and pursuant to the terms of such agreement, you will be able to sue
for divorce based on this "no-fault" ground. (Proof of filing of the Agreement
must be submitted when the divorce is filed)
Living apart pursuant to a Separation Decree (a court judgment)
Provided that you have lived apart for a year pursuant to the terms of Judgment
of Separation you may secure a divorce based upon that fact alone. In order to
obtain the Judgment of Separation, you must establish a ground for divorce.
Grounds are the fault grounds listed above, except that abandonment may be for
less than a year.
