GROUNDS FOR DIVORCE

By Sari M. Friedman, Legal Counsel
FRALI and FRANY

People commonly think, misleadingly so, that a divorce can be obtained in New York State based upon
"irreconcilable differences" or that there is "no fault" divorce. Not so.

In the State of New York, one MUST establish grounds to obtain a divorce.

What Are the Grounds for Divorce in New York State?

1. Cruel and Inhumane Treatment - This may be either physical and/or mental cruelty. It is necessary to prove that the treatment or conduct is serious enough to render co-habitation either unsafe or improper. Mere incompatibility or a dead marriage is not cruel and inhumane treatment. Exactly what is sufficient to prove a case varies in each individual situation. Examples of cruelty are physical assaults or threats of physical assault upon a spouse, constant belittling and yelling, public humiliation, flaunting of an affair. In pleading a case for cruelty, the law allows you to cite complaints occurring five years prior to the commencement of the divorce action. If your complaint, however, is a continuous course of conduct, you can assert it prior to the five-year period.

2. Abandonment - This can be actual, meaning your spouse has moved out without your consent and without justification and without intent to return. Without justification means your conduct did not cause your spouse to leave. Or it could be that your spouse locked you out without just cause. The abandonment had to take place and continue for one year prior to the filing for divorce. Abandonment can also be constructive, meaning your spouse refuses to have sexual relations for at least one year prior to the filing for a divorce.

3. Adultery - Adultery can be established by providing a witness to the adultery other than yourself, or by establishing, via circumstantial evidence, that your spouse had the opportunity and inclination to engage in sexual relations. If, however, you do not sue for divorce within five years of learning of the affair, or if you forgive your spouse by engaging in sexual relations after the affair, or if you too engage in adultery, or you consented to your spouse's adultery, the divorce will be denied.

4. Separation Agreement -- Living separate and apart for at least one year pursuant to a validly executed separation agreement, filed with the County Clerk, allows either spouse to sue for a "no fault" divorce. The agreement must contain the provisions settling your financial matters as well as custody, visitation, and support matters.

5. Imprisonment - Imprisonment for three or more years of your spouse prior to suing for divorce.

6. Declaration of Separation - A Declaration of Separation by a court, meaning a court declares you legally separated, may be obtained based upon the other spouse's wrongdoing, i.e. the same wrongdoing as necessary to grant a divorce. The only difference is that the abandonment can be less than one year. There is also a cause for action for separation, which is recognized on the basis of one spouse's failure to support the other.

What Happens When Two People Agree to Have a Divorce?

If both parties agree, they can execute a valid Separation Agreement and, after one year, one of the parties can sue for divorce based upon the Separation Agreement to which the other party can consent. Or if there are other grounds that exist, one party can assert it and the second party may consent. Very commonly when two people wish to obtain a divorce one sues alleging constructive abandonment and the other consents to the divorce without admitting to the truth of what is alleged.

Why might someone not consent to a divorce? Some may say it is because of feelings for the other spouse. Remember, however, the denial of a divorce certainly cannot compel a spouse's feelings or even compel a spouse to continue cohabitation. For this reason, a spouse may consent to a divorce even though it may not be what he or she wants. Another example would be a spouse insisting on certain financial terms before agreeing to a divorce.

A more common reason to approve grounds for divorce is strategy, i.e. negotiating a favorable settlement agreement. For example, one may argue that unless the custodial arrangement is a particular way, they do not agree to the breakup of the household or the children or themselves moving out of the home.

Summary

Do you have grounds for divorce? Does your spouse? Is it in your best interests to contest a divorce? These are all questions to ask when consulting an attorney. They are not questions that can be answered by friends or family even those who have been through the process themselves.