Understanding Grounds For Divorce In New York

You do not need a license or permission from the state of New York to date someone, or to establish a household together, or to have children. But if you are getting a divorce, and you don't have an out-of-court settlement, your household's rules suddenly change: Now you are playing by New York state's rules. As your attorney I will guide you through this process, some of which is based upon antiquated assumptions, much of which will appear byzantine in its methods, and virtually all of which is counter-intuitive, especially because of the emotional stress. In a nutshell, it probably won't feel good until it's over. Until then, I will guide you and defend you if your spouse tries to take advantage of you.

A little preliminary history: There is no "federal" or "international" law of divorce. While many states have enacted similar laws on many aspects of the divorce process, each state (or country) has its own laws to entitle a spouse to obtain a divorce. Generally speaking, regardless of where you got married, you will get your divorce in the state in which one or both of you reside, and the support rights, property distributions and child custody will be determined in the state where you (and the children) reside.

A hundred years ago, adultery was the only grounds for divorce in New York. Along with society's evolution, that has changed over time. Until October 12, 2010, New York was the only state that still required grounds for divorce. There were six grounds for divorce in New York. That just changed, and now there are seven grounds for divorce. New York now enables a spouse to obtain a divorce if there has been an "irretrievable breakdown" of the relationship of at least six months.

New York's seven grounds for divorce are:

  • Cruel and inhuman treatment
  • Abandonment for a period of more than five years (or constructive abandonment, which is refusal to have sex for a period of more than one year)
  • Adultery
  • Conviction of a felony
  • Disappearance for three years
  • Living apart for one year pursuant to a separation agreement or separation judgment
  • Irretrievable breakdown of the relationship for a period of at least six months

The new non-fault amendment to New York's divorce law makes it unlikely that there will be any more trials on the issue of grounds for divorce, certainly as to divorce actions commenced after October 12, 2010. Even before the 2010 amendments, most judges did not want to have the spouses spend the time to try the issue of grounds for divorce. The two spouses will often be encouraged to come to an agreement for an uncontested resolution of the issue of grounds for a divorce so the court can focus on the important child custody and economic issues in the divorce process: spousal support, property division and child custody.

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