Brian D. Perskin & Associates

GROUNDS FOR DIVORCE

The causes of action for divorce in New York state (accusations against the defendant by the plaintiff that are grounds for divorce) are limited to:

  • Cruel and inhuman treatment (Domestic Relations Law §170.1)
  • Abandonment for a continuous period of one year or more (Domestic Relations Law §170.2)
  • Imprisonment for more than three years subsequent to the marriage (Domestic Relations Law §170.3)
  • Adultery (Domestic Relations Law §170.4)
  • Conversion of a separation judgment (Domestic Relations Law §170.5)
  • Conversion of a written and acknowledged separation agreement after living separate and apart for more than one year (DRL §170.6)

CRUEL AND INHUMAN TREATMENT

  • The treatment of the Plaintiff by the Defendant must rise to the level that the physical or mental well being of the Plaintiff is endangered thus making it unsafe or improper for the Plaintiff to continue living with the Defendant.
  • You cannot obtain a divorce simply because you do not get along with your spouse or because you have arguments or because of an isolated act in an otherwise long and peaceful marriage. New York does not recognize “Irreconcilable Differences” as a grounds for divorce.
  • All acts must have occured in the last five years, for the court to grant a divorce on these grounds.
  • In many cases a divorce on this ground has been denied when verbal abuse was the only factor. However, in cases where the verbal abuse is combined with any type of physical violence, the divorce will generally be granted particularly when there is objective proof of the violence, such as medical records.

ABANDONMENT

  • An action for divorce may be maintained where the Defendant abandons the Plaintiff for a period of one year or longer prior to the commencing the action and continuing to the present.
  • Abandonment may take the form of your spouse physically departing your marital home without any intention of returning for a period of one year or longer prior to commencing the action, and continuing to the present, without any goof reason for doing so and without you consent.
  • Another form of abandonment is called constructive abandonment, which involves one spouse’s refusal to engage in sexual relations with the other spouse continuously for one year or longer prior to commencing the action, and continuing to the present, without consent, good cause or justification.
  • Another form of abandonment is called a lock out, which involves one spouse’s refusal to allow the other spouse into the home continuously for more than one year prior to commencing the action and continuing to the present.

IMPRISONMENT

  • An action for divorce may be maintained where the Defendant is imprisoned for a period of at least three consecutive years. The imprison men must have commenced after the date of the marriage and the Defendant must still be in prison when the divorce action is commenced. There is a five year time limit to starting the action, beginning from the time of the completion of the third year of imprisonment.

ADULTERY

  • An action for divorce may be maintained based on adultery, which is an act of sexual or deviate sexual intercourse voluntarily performed by the Defendant with a person other than his or her spouse during the course of the marriage.
  • The ground of adultery can be difficult and expensive to prove because the testimony of the Plaintiff is not enough and other evidentiary requirements must be satisfied (the Defendant’s admission is not enough). In certain cases acts of adultery may qualify as acts of cruelty and entitle you to maintain a divorce action on the grounds of cruel and inhuman treatment.

CONVERSION OF A JUDGMENT OF SEPARATION

  • This ground is not used often. It involves a judgment of separation signed by a Judge or Referee of the Supreme Court.
  • To maintain a divorce action the parties are required to live separate and apart. They must satisfy the terms of the judgment of separation for more than one year after the judgment was granted.

CONVERSION OF A SEPARATION AGREEMENT

  • A separation agreement is an agreement between the spouses that sets forth the terms and conditions by which the parties will live apart. The agreement must be signed by the parties before a notary and filed with the County Clerk in the county where one of the parties resides.
  • If you and your spouse have lived apart for more than one year according to the terms and conditions of a properly executed separation agreement, you may maintain an action for divorce.

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