 GROUNDS FOR DIVORCE |
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NEW NO FAULT LAW
As of October 12, 2010, New York has moved into compliance with
other states by offering a no-fault type of divorce. The new law,
contained in Section 170(7) of the Domestic Relations Law, allows a
party to obtain a divorce upon a showing that the marriage has been
irretrievably broken for a period of six (6) months or more. When
the new no-fault ground is used, the Judgment of Divorce will be
entered when all of the parties’ financial and custodial issues have
been resolved. All divorce actions commenced after the effective date
of the new law qualify for use of the no-fault ground.
Divorce actions which were commenced prior to the effective date
of the new legislation still require proof of fault (with the exception
of a conversion divorce explained below). These traditional grounds
for divorce are set forth below. Although the fault based grounds will
likely become more obsolete in future years, they remain available
to a party who wishes to pursue a divorce on grounds, and where
it may be strategically prudent for use in certain types of divorce
actions.
FAULT BASED DIVORCE GROUNDS
Cruel and Inhuman Treatment
This ground not only mandates that cruelty be established, but
likewise requires that the offending conduct render it unsafe or
improper for the parties to continue to reside together. The acts in
question must have occurred no more than five years prior to the
filing of the divorce proceeding, and can include any conduct which
results in physical or mental harm to the spouse seeking the divorce.
Generally, marriages of longer duration require a higher degree of
proof of cruel and inhuman conduct. Incompatibility alone is not
sufficient to prove cruelty.
Abandonment
Abandonment is based upon a refusal by one spouse to fulfill basic
marital obligations. The abandonment must continue for a period
of one or more years. It may involve an actual departure from the
marital residence (actual abandonment) or an unjustified refusal by
one spouse to engage in ordinary marital relations-typically sexual relations (constructive abandonment).
Imprisonment
The imprisonment must continue, unabated, for a period of three or
more years.
Adultery
Adultery involves the commission of an act(s) of sexual intercourse
with one other than one’s spouse. The adulterous conduct must
be proven by clear and convincing evidence. However, direct
evidence (i.e. an eyewitness) is not necessary to prove the conduct
in question. Rather adultery is often established by circumstantial
evidence tending to show a spouse’s desire and willingness to
engage in adultery, coupled with the opportunity for the spouse to
engage in such behavior.
Divorce Pursuant to a Separation Agreement
These proceedings are commonly known as conversion divorce
proceedings. In essence one spouse commences such a proceeding
to convert an existing separation agreement into a judgment of
divorce. To establish the right to a conversion divorce, the requesting
spouse must establish that the agreement is in writing and has been
filed; that the agreement complies with certain legal requirements
and is properly acknowledged; that such party has substantially
complied with his or her obligations under the agreement; and
that the parties have in fact lived separate and apart pursuant the
agreement for more than one year. This ground does not require a
separate showing of fault by one spouse against the other.
Determining when and what to prove in the course of a divorce
proceeding requires the experience and trial skills of a seasoned
matrimonial practitioner.
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| Mark I Plaine, ESQ |
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