only recognizes divorces
based upon fault-based criteria, though the parties may agree to enter into a separation and have the separation agreement or judgment be the further basis for a divorce after one year. The parties may also agree to an uncontested divorce as long as one of the parties is willing to allege one of the fault based grounds or has the requisite separation agreement or judgment.
Grounds for divorce in New York
The cause of action
for divorce in New York state (accusations
against the defendant
by the plaintiff
that are grounds for divorce
) are limited to:
- Cruel and inhuman treatment (Domestic Relations Law §170.1)
- Abandonment for a continuous period of one year or more (DRL §170.2)
- Imprisonment for more than three years subsequent to the marriage (DRL §170.3)
- Adultery (DRL §170.4)
- Conversion of a separation judgment (DRL §170.5)
- Conversion of a written and acknowledged separation agreement after living separate and apart for more than one year (DRL §170.6)
One or more of these grounds for divorce must be used if one party to the marriage wants a divorce. The parties can also disagree over child support, custody, alimony, division of joint assets or who is going to pay legal fees. These are known as "ancillary relief" (see below) that are requested by one or both of the parties. All divorces, even by uncontested consent, must be a based on one of the six grounds stated above.
The grounds do not include accusations of bad conduct against the
plaintiff unless such bad conduct rises to the level of cruel and inhuman treatment. In New York none of the following are grounds for divorce:
- Irreconcilable differences
- Mutual consent
- No communication
Litigants, attorneys, and judges have expressed frustration at the continued failure of the New York legislature to implement no-fault divorce. New York is the only jurisdiction in the United States that does not offer a no-fault basis for divorce. The ground that comes closest to no-fault is DRL 170.5, which requires that the parties live separate and apart for a minimum period of one year after the execution of a separation agreement.
Cruel and inhuman treatment
Cruel and inhuman treatment must be behavior by the defendant that rises to the level such that it makes it improper for the plaintiff to continue to reside with the defendant as husband and wife. Allegations under this ground include allegations of domestic violence and repeated, extreme mental cruelty. In New York, the longer the duration of the marriage the more severe the level of cruelty must be in order to establish grounds under cruel and inhuman treatment.
Abandonment may be actual or constructive, actual abandonment is usually one spouse leaving the marital residence without the consent of the other spouse without intention to return. One spouse may also lock out the other spouse from the marital residence preventing the parties from cohabiting. Constructive abandonment occurs when one spouse refuses to engage in sexual relations with the other spouse for a period of one year. To prove constructive abandonment, the spouse attempting to obtain the divorce must also show that he or she made repeated requests for relations during that year, that the other spouse refused those requests and that the other spouse was physically and mentally capable of having sexual relations.
Adultery is difficult to prove as it requires corroborating evidence from a third party; thus a statement by the defendant that he or she had sexual relations with a third party is not legally admissible to permit the court to grant a divorce to the plaintiff.
The grounds for divorce may be decided by a jury or by a judge, all other ancillary relief is considered equitable
in nature and must be decided by the judge alone.
The grounds in all cases must be specifically stated in the complaint, giving factual details, dates, and actual places of occurrence. Lack of proper content is not an affirmative defense; the plaintiff must prove the allegations even if uncontroverted; proof is made according to the general rules of evidence. Failure to state a cause of action will result in a judgment dismissing the complaint. Divorce may commence by means of filing and service of a Summons with Notice on the defendant. The defendant must then make an appearance and demand for the complaint by the plaintiff, or is at risk of having the plaintiff granted the divorce by default.
Once the case is filed and served the parties must request a Preliminary Conference within ninety days if the case is to be treated as a contested divorce. Such Preliminary Conference will be scheduled if one of the parties files a "Request for Judicial Intervention" (RJI) with required fee. At the Preliminary Conference the court may deal with interim issues, (i.e. temporary custody, child support, attorney fees or spousal support) and will schedule discovery between the parties that includes the valuation of assets and pensions to be divided between the parties.
If all the issues are decided between the parties they may agree to submit the papers to the court for approval; this is known as an uncontested divorce. When the defendant is served but does not answer the legal pleadings the plaintiff may seek a default judgment by application to the court. If the divorce is started with a Summons with Notice then the grounds will either have to be proven by plaintiff's affidavit or by testimony at an inquest if the divorce is uncontested or to be granted by default. Uncontested divorces are also granted after the defendant appears and waives the right to answer the complaint. In these cases the defendant neither admits nor denies the plaintiff's allegations, it is up to the plaintiff to prove the allegations by testimony or affidavit in such a case.
For New York State Supreme Court to have jurisdiction over the parties (see DRL § 230) one of the following residency conditions must be satisfied:
- The marriage ceremony was performed in New York and either spouse is a resident of the state at the time of the commencement of the action for divorce and resided in the state for a continuous period of one year immediately before the action began.
- The couple lived as husband and wife in New York and either spouse is a resident of the state at the time of the commencement of the action for divorce and resided in this state for a continuous period of one year immediately before the action began.
- The grounds for divorce occurred in New York and either spouse is a resident of the state at the time of the commencement of the action for divorce and resided in the state for a continuous period of one year immediately before the action began.
- The grounds for divorce occurred in New York and both spouses are New York residents at the time the action is commenced.
- If the parties were married outside of New York and have never lived together as husband and wife in the state and the grounds for divorce did not occur in New York then, one spouse must presently be a resident of New York and have resided continuously in the state for at least two years prior to filing an action for divorce.
Residing "continuously" in the state does not mean that the party can not have left the state during the period of residency nor does it mean that the party does not have another residence elsewhere outside New York.
There are three keys issues when children are involved in a divorce or separation:
- Child Custody - physical custody (where is the child's main residence) and legal custody (who makes decisions about the child) are the two elements of custody. Custody may be joint (shared by consent between the parties) or it may be sole as determined by agreement or by court order. Before custody is awarded the court usually undertakes various investigative steps to determine what is in the best interests of the child or children. If custody is not decided upon by consent (with the court and a court appointed law guardian representing the child) then a hearing takes place at which both parties present evidence to determine who should have custody in the best interests of the child (or children).
- Child Visitation - the parent who does not have physical custody has either: a) reasonable rights of visitation, b) a specified visitation schedule, or b) is limited to supervised visitation. Only in very rare cases may the non-custodial parent be denied visitation. Usually this is for very specific reasons such as severe substance abuse, history of domestic violence or lack of interest in the child.
- Child Support - In New York the amount of child support paid by the non-custodial parent to the custodial parent is determined by the state Child Support Standards Act. Based on an adjusted gross income formula the payments are 17% for one child and 25% for two children. There are limits that can be reached for individuals with very low income below the poverty level or very high income (statutorily above $80,000 but usually over $150,000) that will allow for deviations from these percentages. Over and above monthly or weekly child support, the court is also able to award a child support "add-on" for daycare costs if the custodial parent works, educational costs for the child (usually limited to college, not private or religious elementary or high school), and medical expenses, including the cost of medical insurance.
is the law in New York that determines the division of property at the end of a marriage. The court examines thirteen factors in determining the fair division of the property that was accumulated during the marriage and the debts of the parties. The courts have routinely held that equal distribution is the norm except in cases of egregious misconduct, or when dealing with businesses, professional licenses, and college & advanced degrees.
is known as "maintenance" or "spousal support." Unlike child support, there is no set formula to calculate spousal support. A grant of spousal support depends on the facts of the case, such as the disparity between the income of the parties, the duration of the marriage, the health of the parties, and the presence of very young children. In New York spousal support is rarely granted on a permanent basis, except in cases of physical or mental disability or when the parties are elderly (about 60 years old or older). Generally, it is granted for a set period of time so the other party can get back on their feet after the termination of the marriage. The length of time depends on the facts of the case as the judge sees fit to award.
When one party to a divorce is unable to afford an attorney that party is allowed to request the court to order the spouse with the greater income or assets to pay all or part of the other spouse's legal fees. These awards can be on a temporary basis at the beginning of the suit or at the end, as the judge sees fit in each case.
The wife in a divorce often wants to use her maiden name or a prior name if she has changed her name before the marriage sought to be dissolved and wants to keep that name after divorce. The court routinely grants the right to such a name change
in the final divorce decree.