Each state has its own rules governing aspects of marriage, divorce, and other domestic relations issues. If you want to get a divorce in New York, you must allege a specific ground for doing so. Historically, most states only granted divorces on the grounds that indicated a high degree of fault or other extreme circumstances.
Today, most states allow couples to get a divorce based on personal differences—known as “no-fault” divorce. New York was the last state to recognize no-fault divorce when it amended its Domestic Relations Laws in 2010 to include the “irretrievable breakdown of the relationship” as a divorce ground.
This blog examines the fault-based and no-fault based grounds for divorce under New York law.
Cruel & Inhuman Treatment
New York Domestic Relations Law § 170(1) lists “cruel and inhuman treatment” as a fault-based divorce ground. To get a divorce based on this ground, one must show that “the defendant’s conduct so endangers either the physical or mental well-being of the plaintiff as to make it either unsafe or improper for the plaintiff to continue to cohabit with the defendant.”
Courts have held that the following acts constitute “cruel and inhuman treatment:”
- Emotional abuse
- Sexual abuse
- Sexual infidelity
- Unjustified refusal to have sexual relations
- False allegations of adultery
- Withdrawal from family life
- Failure to support a spouse
- Substance abuse
Some conduct—such as adultery—may also qualify as another divorce ground. Courts have broad discretion in determining what behavior qualifies as cruel and inhuman treatment. Importantly, a plaintiff must overcome a higher standard of proof to demonstrate cruel and inhuman treatment.
Under Domestic Relations Law § 170(2), you can get a divorce if a spouse abandons or deserts the other spouse. This also qualifies as a fault-based ground for getting divorced in New York.
To successfully get a divorce due to abandonment, the plaintiff is required to prove that:
- The abandonment was without the plaintiff’s consent
- The abandonment was unjustified by the plaintiff’s conduct
- The other spouse has been gone for at least one year and has not returned
In New York, you can get a divorce if your spouse was confined to prison for three years. The three-year imprisonment period includes post-trial incarceration for a guilty plea as well as pretrial jail time, as long as the confinement was continuous. Although this is considered a fault-based divorce ground, the actual guilt or innocence of the other spouse is irrelevant. Thus, an imprisonment-based divorce is still valid even if the defendant spouse ultimately proves his or her innocence on appeal,
Under Domestic Relations Law § 170(3), you may get a divorce for abandonment if you can prove that:
- Your spouse was actually and physically in prison for at least three consecutive years since getting married
- Your spouse was in prison when you filed for divorce
Adultery is a fault-based ground for divorce under Domestic Relations Law § 170(4). Any sexual act that the other spouse engages in while married can constitute adultery justifying divorce. The defendant's spouse need not have been in a long extra-marital relationship to have committed adultery, as a single act of extra-marital sexual relations will suffice to obtain a divorce.
Courts have held that adultery can occur even if the qualifying act happened after divorce proceedings started but before final judgment was rendered. The plaintiff can amend their divorce filings to reflect their spouse’s adulterous conduct.
Importantly, adultery is a crime under New York criminal law.
Separation Pursuant to a Court Order
Domestic Relations Law § 170(5) authorizes a court to grant a divorce based on the fact that the parties have been living separate and apart for at least one year under a court order of separation. Either party to the previous separation proceeding can file force divorce under this section, as long as they have substantially performed the terms of the order. This is known as a “conversion divorce” as it converts a legal separation into a full-fledged divorce.
To obtain a divorce based on separation according to a court order, the plaintiff must provide proof of the following:
- A valid decree or judgment of separation
- The date of the separation decree or judgment
- The court and state where the separation decree or judgment was issued
- Which party the separation decree or judgment favored
- A continuous one-year period of living separate and apart
- Substantial performance of the separation decree or judgment’s terms and conditions
Technically, getting a divorce based on this ground does not involve issues of marital fault, although the underlying separation judgment may have involved a fault-based divorce ground. Courts are primarily concerned with the validity of the separation.
Separation Pursuant to Agreement
Similar to converting a separation based on a court order into a divorce, Domestic Relations Law § 170(6) provides that a spouse can also convert a one-year period of separation pursuant to a private agreement into a divorce. When both parties request a conversion divorce and demonstrate substantial performance of the terms and conditions of the agreement, the court will grant them a “dual-divorce.”
To obtain a conversion divorce under a separation agreement, one must show that:
- The parties entered into a valid, written separation agreement
- The parties acknowledged or proved the separation agreement sufficient to entitle a deed to be recorded
- The parties had been living separate and apart for at least one year after entering into the separation agreement
Irretrievable Breakdown of the Relationship
For divorces filed after October 12, 2010, the plaintiff spouse may allege the no-fault ground of “irretrievable breakdown of the marital relationship. Under Domestic Relations Law § 170(7), “[a]n action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage…[because the] relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath.”
Before the court grants a divorce based on an irretrievable breakdown of the relationship, all pertinent financial and custody issues must be resolved either through the private agreement of the parties or through judicial determination by the court.
The issues that must be resolved to obtain a no-fault divorce include:
- The equitable distribution of marital property
- Spousal support
- Child custody
- Child support
- The settlement of legal fees
Consult the Law Office of Tzvi Y. Hagler, P.C. for More Information
If you have legal questions and concerns about getting a divorce in New York, call the Law Office of Tzvi Y. Hagler, P.C. Attorney Hagler is committed to helping people understand the complexities of New York Domestic Relations Laws as they pertain the getting a divorce.
Call the office at (516) 514-3868 or contact Attorney Hagler online to schedule an initial consultation to evaluate the merits of your case.