New York Fault Divorce

Grounds are legally acceptable reasons that a couple can use to get a divorce.  After October 12, 2010, the state of New York approved no-fault divorce (we examined a famous New York case in Sorrentino v. Sorrentino in an earlier blog. You can read that post here). Before October 2010, New York was the only state in the Union that had not adopted the no-fault ground. This was added to the more traditional fault-based divorce that had been the only way to dissolve a marriage into divorce.

But what of the other grounds for divorce, where one spouse petitions against the other because of their actions, behavior or neglect? What are the grounds for fault-based divorce in the Empire State of New York?

  • 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 you to prove 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.
  • Abandonment – To file for divorce based on abandonment, your spouse must have abandoned you for a period of one or more years. Specific examples of abandonment by your spouse include a physical move from the home (they’ve moved out without intending to return), 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.
  • Three Consecutive Years of Imprisonment – This is a ground for fault-based divorce if your spouse has been in jail for three or more years in a row beginning after your marriage. Once your spouse has been in jail for three years in a row, you can file for divorce while your spouse is still in jail or up to five years after they have been 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, meaning someone besides you or your spouse.

There is another ground for divorce in New York that does not have to meet any of the tenets of the fault-based divorce grounds listed above. It is closer to a no-fault ground than a fault-based divorce grounds, but where a couple shows they can’t live together and their marriage can’t be repaired. This is the ground of Divorce after a legal separation agreement.

Getting a divorce after a separation agreement does not require you to have one of the New York fault-based divorce grounds.  To file for divorce, you and your spouse must either have filed a valid separation agreement or a court ordered judicial separation. You also must live separately and apart for one year after the agreement or judicial order before you can be divorced. Filing for divorce on the ground of separation agreement can be complicated, as proving you’ve met all the terms of a separation agreement can be caught up in the legal process. If you plan to seek a divorce on the separation agreement ground, it is crucial to get legal advice to ensure all aspects of the separation agreement are covered.

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