 GROUNDS FOR DIVORCE |
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Unlike other states, New York requires that grounds for divorce be established before a court can dissolve a marriage. Six separate grounds for divorce are available under the New York Domestic Relations Law. The list includes four grounds based upon marital fault, and two separate grounds which derive from the existence of a separation decree or separation agreement. The fault grounds consist of cruel and inhuman treatment, abandonment, imprisonment and adultery. While the procurement of a separation decree is rarely in present use, the maintenance of a divorce proceeding based upon an existing separation agreement is frequently used as a method for obtaining a divorce without proving fault. The five more common grounds for divorce are discussed below.
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.
Proving the grounds for divorce in contested divorce matters requires the experience and trial skills of a seasoned matrimonial practitioner.
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| Mark I Plaine, ESQ |
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