Brian D. Perskin & Associates

Grounds for Divorce in New York

In 2010, New York became a “no-fault” divorce state. Prior to the change in matrimonial law, one spouse (or party to the action), would need to take fault (or blame) for the divorce. This meant that they would need to admit that the divorce was happening because of their doing, even if both parties wished to terminate their marriage (this is known as an uncontested divorce).

While it is no longer required that a party to an action cite a specific reason for their divorce, choosing to list a particular grounds is still common. Below, we list and detail what each grounds for divorce in New York means.

Irretrievable Breakdown

Filing for, and obtaining, a divorce is much easier now that New York is a no-fault state. In order to be granted no fault divorce, the plaintiff must list irretrievable breakdown as the reason for their filing. The breakdown of the marriage must have occurred for a minimum of six months before a divorce action is commenced. Irretrievable breakdown is quite vague, as there is no legal definition for what constitutes a marriage that is broken down beyond repair. Because of this, it is open for interpretation and a very common reason why couples file for divorce.

Cruel and Inhumane Treatment

Cruel and inhumane treatment refers to the way a defendant treats the plaintiff. In order to list this as grounds for divorce, the treatment between parties must be severe enough that the physical or mental well-being of the plaintiff is seriously compromised. It would have to be unsafe for the plaintiff to remain living with, or stay married to, the defendant.

One or two arguments and disagreements between spouses does not justify a filing under cruel or inhumane treatment. Any incidents must have consistently occurred within the last five years, and usually involve some form of physical abuse or violence. A plaintiff bears the burden of proving there has been cruel or inhumane treatment, which can be evident in medical records or police reports.

It is important to note the impact a child has while viewing such negative or violent behavior between his or her parents. Growing up in a toxic environment such as this can result in repeat behavior, continued cruelty, and can haunt children well into adulthood. It is in a child’s best interest if their parents get divorced.

Abandonment and Imprisonment

Abandonment and Imprisonment are two different grounds for divorce, and do not necessarily coincide with each other. A plaintiff can only file divorce while citing imprisonment if their spouse has been in jail for at least three consecutive years after the date of marriage. A plaintiff must have the defendant personally served with a Summons while they are in jail. While this isn’t too difficult, it is best to retain a divorce lawyer to complete this process correctly and efficiently.

In order for a plaintiff to list abandonment as a reason for divorce, the defendant must have abandoned their spouse for a minimum period of 12 months. New York recognizes three different forms of abandonment:

  • Physical Abandonment: The defendant has moved out of the marital residence and has not had contact with his or her spouse or children;
  • Constructive Abandonment: Spouses still live together, but one has refused to engage in sexual relations with the other for at least one year; and
  • Lock out Abandonment: One party denies their spouse access to the marital home, and may even change the locks to prevent their spouse from entering.

Adultery or Infidelity

Adultery and infidelity are both valid grounds for divorce, however, they aren’t the most effective because they are difficult to prove. Legally defined, adultery is an act of deviant behavior or sexual intercourse between the defendant and someone other than their married spouse.

Most divorce practitioners will advise their clients against claiming adultery as the grounds for divorce, since the plaintiff’s testimony is not enough to convince the court of a devious act. Additional evidentiary requirements must be met, such as communication between the defendant and other person, photos, or receipts for gifts. The defendant’s admission to infidelity is helpful, but it will not fulfill the court’s requirements.

Contrary to popular belief, claiming or proving infidelity will not negatively impact the guilty party during divorce. While a judge may feel sympathy for the plaintiff, New York law forbids judges from awarding custody or a larger amount of money in alimony to the effected spouse. There is no financial benefit to filing for divorce under the grounds of adultery or infidelity.

Legal Separation Agreements and Judgments

New York State allows married couples to file for a legal separation instead of proceeding with divorce. There are benefits to obtaining a Judgment of Separation. Becoming legally separated allows couples to maintain their married status and the benefits that go along with it, while stipulating child custody and support, maintenance, and equitable distribution.

Assuming both parties have abided by the terms outlined in their Agreement or Judgment for at least one year, then they are eligible to file for divorce without referencing one of the other grounds. This is called a Conversion Divorce. As with abandonment, parties need to reside in separate households during the one year time period. A legal separation does not need to be a precursor for divorce, so parties do not need to worry that they will automatically become divorced once one year passes since their separation becomes finalized.

NYC Divorce Specialists

Divorce can be a very technical and demanding process, which may prove to be overwhelming to someone who isn’t familiar with the court system. This is why hiring an experienced divorce attorney is important. The office of Brian D. Perskin & Associates P.C. is a boutique matrimonial and family law firm based in New York City. Brian and his team of dedicated attorneys successfully negotiate and litigate on behalf of their clients throughout the five boroughs and Long Island. Don’t go through divorce alone; contact Brian D. Perskin & Associates P.C. to schedule your free consultation today!