Marital Fault: Grounds for Divorce in NY?

Marital Fault: Grounds for Divorce in NY?

marital fault

For couples seeking to end their marriage, it is important to know that the State of New York is one of the few states to consider both at-fault and no-fault grounds for divorce. Prior to the enactment of DRL §170(7), a spouse needed to prove one of the following causes of action to obtain a divorce:

  • Adultery
  • Cruel and inhuman treatment
  • Abandonment for a minimum of one year
  • Confinement in prison for a minimum of three consecutive years
  • Living separate and apart pursuant to a written separation agreement for a year or more

For every one of the above cases, substantial evidence must be provided to prove the alleged cause of action as grounds for granting the divorce. The spouse who wanted the divorce, but was unable to prove the essential elements of abandonment, cruelty, or adultery, was at a distinct disadvantage in negotiating financial terms with their adversary spouse. In such cases, the adversary spouse could take the position that they would “consent to grounds” if they received an unfair financial benefit.  Similarly, a spouse who opposed the divorce had the power to force a “grounds trial’, which could result in the dismissal of the action, thus forcing the parties to remain married.

On August 15, 2010, then-Governor David Patterson signed the no-fault divorce bill which affects all divorces commenced after October 12, 2010. This provision referred to as the ‘no fault divorce” cause of action only requires a spouse to demonstrate that ‘the relationship between husband and wife has broken down irretrievably for a period of at least six months “, to constitute a cause of action for divorce in New York.

While clearly, the 2010 law has made it less difficult to divorce in New York, there are many nuances to the statute which the Garden City lawyers, Fass & Greenberg, LLP., are familiar with. For example, there is a requirement that no judgment of divorce shall be granted under this subdivision unless and until all of the issues in the parties’ divorce, i.e., equitable distribution, spousal support, counsel fees, custody, etc., have been determined by the court or resolved by the parties and incorporated into a judgement of divorce. 

The law firm of Fass & Greenberg, LLP are familiar with the type of evidence needed and can inform you on the steps you need to take in this process. A lawyer can also draft the necessary documents that will state your expectations regarding the divorce, alimony, asset division, and arrangements for children. They can also be present at any mediation sessions (if that route is chosen) and can appear in court on your behalf at your hearings.

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