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Grounds for Divorce in New York State
In order to commence an action for divorce in New York State, a spouse has to be able to allege one of the statutory grounds for divorce. Under current New York State law irreconcilable differences are not grounds for divorce. New York currently does not have true "no fault divorce". The spouse that retains my office to process the divorce has to be the spouse who has the grounds to pursue the divorce action (known as the plaintiff). I cannot represent both parties. The current grounds for divorce in New York are: Abandonment for one or more years. This can include the actual act of one spouse leaving the other for a period of more than one year or the refusal of one spouse to have sexual relations with the other for more than one year (constructive abandonment). Under the grounds of constructive abandonment a spouse can be abandoned by the other even though they still reside in the same residence during the period of abandonment. The spouse who retains my services has to be the spouse who was abandoned by the other. I cannot commence a divorce action for the spouse who abandoned the other. Living separate and apart for one or more years pursuant to a written separation agreement. This is New York's version of a no fault divorce. The parties must have entered into a written separation agreement which was drafted in a certain statutory form and the spouse bringing the divorce action has to have substantially performed all of the terms and conditions of the separation agreement. The divorce action can be commenced by either party after one year from the date the separation agreement was signed. A divorce action can also be brought if the parties have lived separate and apart for one or more years pursuant to a judicial decree of separation. In order to obtain a judicial decree of separation, a party has to commence a court action on one of the statutory grounds for separation, which are similar to the grounds for a divorce. Cruel and inhuman treatment. This requires a continuous course of conduct by one spouse against the other that so endangers the physical and mental well being of the other spouse as to make it improper for the spouses to live together. In order to obtain a divorce on the grounds of cruel and inhuman treatment there has to be a detailed list of the cruel and inhuman acts in the divorce documents. The acts of cruelty cannot be more than five years old. The allegations that are needed for the divorce action to be successful often make it difficult for the other spouse to consent to an uncontested divorce. Adultery. This is rarely used because even in an uncontested divorce action, there is a requirement that the testimony of an independent third party be submitted. Confinement in prison for three or more years. If one spouse is in prison for three or more years, the other spouse can commence a divorce action on that basis. The period of imprisonment has to commence after the date of the marriage. |
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