Matrimonial and Family Law

Divorce & Separation

The unprecedented increase in the marriage failure rate during this century and the latter part of last century has had its effect, directly or indirectly, on virtually every family in the country. The following information is designed to summarize briefly New York State’s divorce laws.

Marriage is a civil contract. The state has an interest in preserving marriages. Accordingly, the marriage relationship only can be dissolved by a court, by either a divorce or an annulment. It also may be altered by a decree of separation granted by our courts. In any case, there must be a proceeding in the Supreme Court (which contrary to conventional thinking is not the highest court in New York State, but rather the trial court of general jurisdiction) in which the person seeking the divorce, separation decree or annulment must prove a basis for the divorce.

Pursuant to recent legislation signed into law by the Governor of New York State, New York will now grant a divorce when there has been an irretrievable breakdown of the marriage for six (6) months or longer.  This law brings New York in line with the rest of the country as it pertains to having one or more “no fault” grounds.

New York continues to have what is called a “conversion” divorce in which a divorce may be obtained pursuant to a separation decree or a separation agreement whereby the party seeking the divorce has substantially complied with the terms of the separation decree or the separation agreement for a year or more. Fault-based grounds also exist in New York, as noted below.

In order to obtain a judgment of separation, pursuant to DRL § 200, a party must prove cruel and inhuman treatment, abandonment, non-support, adultery or imprisonment.

What are the grounds for divorce?

Four of the “grounds” in this state are based on the fault of one of the parties:

  1. Cruel and inhuman treatment;
  2. Abandonment for one or more years;
  3. Imprisonment for three or more years; and
  4. Adultery.

The other (“no fault”) grounds are:

  1. One year of living apart under a separation agreement;
  2. One year of living apart under a separation decree granted by a court; and
  3. An irretrievable breakdown of the marriage for a period of at least six months, provided that one spouse has so stated under oath.

These “no fault” grounds afford New Yorkers a basis to obtain a divorce in which neither spouse is judged to be at fault. Unquestionably, the new “no fault” laws will provide a disincentive for people who wish to challenge the basis for the divorce.

New York’s New “No Fault” Ground:

What is “irretrievable breakdown of the marriage”?

An irretrievable breakdown of the marriage allows one spouse, unilaterally, to end a marriage and to do so without the agreement of the other spouse. However, the new law provides that a Court cannot grant a judgment of divorce unless and until the “economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts’ fees and expenses as well as the custody and visitation with the minor children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce.”

To prove the ground of irretrievable breakdown of the marriage the party seeking the divorce must demonstrate that: (1) the relationship between husband and wife has broken down irretrievably; (2) for a period of at least six months; (3) provided that one spouse states this under oath; and (4) proves that the “economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts’ fees and expenses as well as the custody and visitation with the minor children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce.”

The new statute does not elaborate on what must be shown in order to be granted a divorce based upon the irretrievable breakdown of the marriage, but it is likely New York courts will consider what other states in the United States have done where there are similar laws.

What is “cruel and inhuman treatment”?

Cruel and inhuman treatment can involve either physical or mental cruelty. To be a reason for divorce, the treatment must have such a serious effect on the physical or mental health of the divorce-seeking spouse that it is not safe or proper for the parties to continue the marriage.

Some examples of acts that courts have held to be cruel and inhuman treatment for divorce purposes include physical attacks upon a spouse; constant screaming, profanity or other verbal abuse; gambling away the household funds; staying away from the house too often without an explanation; going out with another man or woman; and wrongfully accusing the other spouse of adulterous relations with another man or woman.

Alcoholism, by itself, usually is not a sufficient basis for divorce, unless the offending spouse becomes cruel or violent when intoxicated, so that the other spouse fears for his or her health and safety.

Mental illness also is not a sufficient basis for a divorce on the grounds of cruel and inhuman treatment unless a spouse’s other conduct could be deemed to be cruel and inhuman treatment. However, mental illness is not a defense to a finding of cruel and inhuman treatment. Nevertheless, a court may declare a marriage void when a spouse has had an incurable mentally illness for a period of five (5) years or more.

The courts have held that when there is long-term marriage (often fifteen or more years), the acts of cruelty must be more substantial to justify a divorce. In other words, what might be cruel in a short marriage may not be a sufficient basis for a divorce in a longer marriage.

Each case, however, stands on its own facts. The court decides whether the particular facts justify a dissolution of the marriage. Generally, the acts or conduct on which the divorce is based must have occurred within five years prior to the commencement of the action.

What does “abandonment for one or more years” mean?

Abandonment means that your spouse has intentionally left you without your consent, and of his or her own accord (that is, you did not force or lock your spouse out of the house) and without justification.

You also must prove that your spouse had no good reason for leaving (such as your ill treatment or your consent), that your spouse left with the intention of never returning, and that your spouse did not offer in good faith to return.

Unjustified refusal by a spouse to have sexual relations is also considered a “constructive abandonment” and may also be considered cruel and inhuman treatment.

Abandonment must exist for a continuous period of at least one year before the divorce action is started to be a basis for divorce in this state. There is no statute of limitations on abandonment, but it will depend on specific facts such as health issues, livelihood, compelling family obligations or other reasons.

However, a separation agreement eliminates the ground of abandonment, since when both parties sign an agreement, they consent to living apart.

What is the basis of divorce if a spouse has been “imprisoned for three or more years”?

Divorce on the grounds of imprisonment for three or more years means that the defendant actually must have served three years or more in prison before an action can be brought, even if the conviction is later overturned or reversed.

What is adultery?

Bringing an action on the ground of adultery, especially if your spouse is going to contest it, is not a simple matter. The evidence necessary to prove adultery is difficult to obtain. Generally, you are not permitted to testify against your spouse, and you must have a witness ready to convince the court that your spouse engaged in sexual relations with another person. Adultery is usually proven by circumstantial evidence; that is, by showing that your spouse had the opportunity, inclination, and intent to engage in sexual relations with the other person.

In addition, there are four defenses to the charge of adultery, and if any of these are proven, the court will deny the divorce:

  1. “Procurement” or “connivance”.  Procurement means that one spouse actively encouraged the other to commit adultery. Connivance is similar to “collusion” or “consent” by a spouse to the adultery.
  2. “Condonation” or “forgiveness”.  Having sexual relations with your spouse after discovery of his or her adultery is an absolute defense to your divorce action based on the adultery.
  3. “Statute of Limitations”. There is a time limit (five years from your discovery of the first unforgiven act of adultery) for you to bring the divorce action.
  4. “Recrimination”. This defense means that you, too, were guilty of adultery. No matter how convinced the court is that adultery was committed by both parties, it is forbidden from granting a divorce on such grounds. Thus, if each spouse proves the adultery of the other, neither can obtain a divorce against the other on that ground.

What about living apart and separations?

Living apart, without a formal written agreement of separation or a court judgment of separation, is not recognized as a ground for a New York State divorce, no matter how long you continue to live separately.

Regarding separations, there are only two valid ways to dissolve a marriage. Each requires separation spanning one or more years. The law requires you and your spouse to live apart either under a written contract of separation or under a court judgment of separation and the spouse seeking the divorce must have substantially complied with the terms of the agreement or judgment.

What is a separation agreement?

A separation agreement is a detailed contract which should be prepared by attorneys, where the parties agree to live separate for the rest of their lives. It should set forth the respective rights and duties of husband and wife with respect to the custody and access to children, support payments, distribution of property, and all other matters pertaining to the marital relationship.

Certain vital formalities must be followed carefully, or the written agreement will not qualify as a ground for divorce. Here, the skill and experience of the attorneys are vital to ensure the parties reach an agreement which is fair, just, and reasonable.

The agreement or a memorandum of the agreement is filed (with complete confidentiality) with the clerk of the county where either spouse lives. At the end of one year from the date of the agreement, either spouse may file and serve a summons against the other for a “no-fault” divorce.

All that must be proven to the court is that the agreement was duly executed and acknowledged and was properly filed, the spouses have lived apart during the period of the agreement up to the time of the divorce action, and that the plaintiff has substantially complied with the terms of the separation agreement.

What is a separation decree?

Another form of separation is through a judgment of separation granted by the Supreme Court. This judgment is based on the same four “fault” grounds as for divorce. However, the abandonment may be for less than a year. In addition, “non-support” is a ground for a decree of separation, although not for a decree of divorce.

One year after the filing of the court’s judgment of separation, either party may sue for a “no-fault” divorce, based upon one year of living apart. A divorce does not occur automatically after a year. Court action must be taken.

What is an annulment?

An annulment is granted when a marriage is voidable or void from the beginning, that is to say, there was a defect at the time the parties entered into the marriage, enabling the court to render it invalid. Grounds for annulment are as follows:

  • Fraud — Where a party’s consent to the marriage was obtained by fraud, provided the fraud was such that it would have deceived an ordinarily prudent person and was material to obtaining the other party’s consent. The fraud must be such as to go to the essence of the marriage contract. Only the injured spouse, his or her  parent, or his or her relative with an interest to void the marriage can obtain the annulment on this ground. Fraud claims include, but are not limited to: misrepresenting one’s religious denomination or the intensity with which one practices; concealing one’s inability to procreate; secretly carrying a disease or genetic disorder that would increase the risk of procreation; coercing one’s husband into entering a marriage based on a false declaration of paternity; misrepresenting sexual proclivities; and physically being incapable of consummating the marriage.
  • Non-age — Both parties must be over the age of 18 years, unless a party is between 16 and 18 years old and has parental consent to marry; or is under 16 years and has both parental consent and court approval to marry. No person under the age of 14 years may marry under any circumstances. A marriage between persons under the age of 18 may be annulled, at the discretion of the court, if the spouse under 18 wants an annulment, or an action may be maintained not only by the underage spouse, but also by either his or her parent or guardian.
  • 5 years of incurable insanity — If during the marriage, either party becomes incurably insane for five years or more, the marriage may be annulled. However, the other spouse may be required to support the mentally ill spouse for life.
  • Mental Incapacity — A marriage may be annulled if one or both of the parties suffered from mental illness or retardation at the time the marriage was entered into. This ground is waived if the moving party remains in the marriage after his or her incapacity is cured.
  • Duress — The parties must knowingly consent to the marriage. It may be voided if either spouse consents to marry as a result of the force or duress of the other spouse; or if either spouse cannot understand the commitment they are about to make. This is also known as lack of consent. However, subsequent cohabitation, or evidence of forgiveness on the part of the coerced spouse may disable his or her ability to rely on this ground to annul the marriage.
  • Already married — If a spouse enters into a marriage before his or her previous marriage is legally dissolved or annulled, then the present marriage will be deemed void as a matter of law.

How can a marriage be dissolved if a spouse has been missing?

Where your spouse is absent and missing for five years or more, you may bring a special proceeding in Supreme Court to dissolve the marriage. You must prove that your spouse has been absent for five successive years, without being known to be alive; that you believe that your absent spouse is dead; and that you made efforts to discover that he or she is still living, but no evidence proving otherwise was found. After the dissolution becomes final, the reappearance of your absent spouse does not revive your marriage.