Grounds for Divorce: New York

On August 15, 2010, Governor David Paterson signed no fault divorce into law in New York state, joining the other 49 states of the Union. A no fault divorce gives couples an option for severing their marriage quickly, at lower cost, and with much less heartache that a drawn-out divorce court proceeding.

Before 2010, New York only recognized divorces upon fault-based criteria, though the spouses could agree to enter into a separation and have the separation agreement or judgment be the further basis for a divorce after living apart for a year. They might also agree to an uncontested divorce as long as one of the parties were willing to allege, or claim, one of the fault based grounds or if  the required separation agreement or judgment were obtained.

Before the No Fault Divorce Bill was signed in 2010, there were basically only six grounds for divorce in New York:

  • 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 or wife.” Allegations under this ground include allegations of domestic violence and “repeated, extreme mental cruelty.”
  • Imprisonment for more than three years subsequent to (after) the marriage
  • Adultery 
  • Conversion of a separation judgment and Conversion of a written and acknowledged separation agreement after living separate and apart more than a year: Conversion of a separation agreement means when a married couple voluntarily enters into a properly acknowledged (by a judge) separation agreement and then waits at least one year, they can be divorced. In the other type, conversion of a separation judgement, where the parties do not enter into a separation agreement voluntarily, one spouse can sue the other for separation. The grounds for separation resemble those required for divorce, but with with some important exceptions. If the basis for separation is abandonment, there is no requirement that the abandonment has continued for at least a year. It is also possible to sue for separation based on nonsupport. If one spouse has the means to support the other at the “marital standard of living,” and yet, refuses, the unsupported spouse can sue for separation.  After the parties obtain a judgment of separation, at least a year must pass before a divorce on this basis can be sought. Once the year has passed, either spouse may seek a divorce.
  • Abandonment (for a continuous period of a year or more): Abandonment may be actual or constructive.  Actual abandonment is usually one spouse leaving the home without the consent of the other spouse, with no intention of coming back. One spouse may also lock out the other spouse from the home. Constructive abandonment is the refusal of “basic obligation arising from the marital contract,” including a refusal to have sex. Establishing constructive abandonment may cause the spouse who leaves, or locks out the other, to be seen as the “innocent” spouse.

In New York, in 2010, with Governor Paterson’s signature, a new ground for divorce was added, paving the way for no fault divorce, called Irretrievable Breakdown. Under this ground, the relationship between the husband and wife is deemed to be hopelessly lost and without hope for repair. As the law puts it, the marriage has “broken down irretrievably for a period of at least six months.” This ground is unlike the other six grounds, where one spouse is deemed at fault and the cause of the divorce. Under the no fault divorce law neither is to blame; the marriage just isn’t going to work. In these cases a ruling for a no fault divorce would be handed down, saving the couple legal fees and easing the divorce court’s docket.

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