Divorce

“Grounds” are legally acceptable reasons for a divorce. In New York, there are two “no-fault” divorce grounds and several fault-based divorce grounds.

No-fault grounds: In New York, you can file for a no-fault divorce for either of these reasons:

Breakdown of the marriage – You can get a “no-fault” divorce if, according to either party, the marriage has “broken down irretrievably” for a period of at least six months. You do not have to be separated for six months; you just have to allege that the marriage has been completely broken down for at least the past six months. In other states, the common term used for this is “irreconcilable differences.” Note: A judgment of divorce will not be granted under this ground until the following issues are agreed upon by the parties or decided by the judge:

• division (“equitable distribution”) of marital property;
• the amount of spousal support, if any;
• the amount of child support;
• how to divide any payments owed for attorney fees and experts’ fees and expenses; and
• the custody and visitation of any minor children of the marriage.¹

Divorce after a legal separation agreement – To file for divorce based on this ground, there are two requirements:

1. Either of the following must be true:
   • you and your spouse filed a valid separation agreement that you both agreed to; or
   • one spouse filed for a court-ordered judicial separation; and

2. You and your spouse have lived separate and apart for one year after the agreement or judicial order.³ 

If you and your spouse decide to sign a separation agreement, it is recommended that an attorney writes it up since there are many specific requirements that it must meet to be acceptable (valid). If the judge decides that it is not “valid,” it cannot be used as the grounds for your divorce.

Fault-based grounds: In New York, you can file for a fault-based divorce for any of these reasons:

1. 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.
2. Abandonment – Your spouse must have abandoned you for a period of at least one year. Specific examples of abandonment by your spouse include a physical move from the home 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 is known as “constructive abandonment” and can also qualify you to file under this ground.
3. Imprisonment for three consecutive years – Your spouse must have been in prison for three or more years in a row but the sentence must have begun after your marriage.
4. 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 someone other than you or your spouse (a “third party”).²

Note: You cannot file for divorce based on “cruel and inhuman treatment” or “imprisonment for three consecutive years” if the events that created the ground happened more than five years before your divorce case is filed.⁴  

¹ NY Dom Rel Law § 170(7)
² NY Dom Rel Law § 170(1) - (4)
³ NY Dom Rel Law § 170(5), (6)
⁴ NY Dom Rel Law § 210(a)