Are There Defenses to Divorce Actions in New York?
Divorce is a hard thing to get through. It can be a confusing process and can bring up a lot of emotions. Traditionally, a spouse had to allege some fault on the part of the other spouse in order to file for a divorce. As of 2010, this has changed with the introduction of the no-fault ground for divorce in New York. A no-fault divorce gives a spouse the ability to file for divorce without having to show any fault on part of the other spouse. On the other hand, a fault-based divorce indicates a reason as to why one spouse is to blame for the breakdown of the marriage.
The provision for no fault divorce is premised on the irretrievable breakdown of the relationship between the husband and wife for a period of at least six months, a fact that one spouse must state under oath. This provision also requires that all economic issues are taken care of before any divorce is granted, including equitable distribution, spousal support, child support, custody, visitation, and payment of fees. If you and your spouse are able to come to agreement on all of the relevant issues, a no-fault divorce can be a quicker and more efficient path to dissolving your marriage.
In addition to irretrievable breakdown of the marriage, or no-fault divorce, there are six other grounds for divorce outlined in Domestic Relations Law Section 170, including: (1) cruel and inhuman treatment, (2) abandonment, (3) imprisonment, (4) adultery, (5) living apart pursuant to a decree or judgment of separation for a period of at least one year, and (6) living separate and apart pursuant to a written agreement of separation for a period of at least one year. The first four grounds require a spouse to prove to the court the reason why the other spouse caused the breakdown of the marriage. Grounds (5) and (6) require proof of separation and a longer waiting period than no-fault divorce. If you find yourself in a situation where your spouse has filed for a fault divorce, the attorneys at Fass & Greenberg can help you understand your rights and the next steps to take.
If your spouse files for a fault divorce, it will put them in the position of receiving a much larger share of the assets or a larger alimony if they can demonstrate that your actions caused the dissolution of the marriage. You can protect yourself against this sort of judgment by hiring a divorce lawyer. Your spouse will have to offer proof of the alleged misconduct, and divorce law gives you the right to protect yourself by disproving the allegations. Because of what is at stake, New York law allows several defenses to fault divorce actions, including:
- Connivance: this occurs when your spouse has baited or set you up to commit an improper act
- Condonation: this is your defense when your spouse knew of the misbehavior, forgave it, and went on with the marriage
- Recrimination: your spouse is guilty of the same conduct they have accused you of
- Provocation: your spouse purposefully did something that left you little choice but to leave the marriage
- Collusion: this is your defense when your spouse fabricated grounds for a divorce
If your spouse is seeking a fault divorce, then they are initiating a form of litigation. You have the right to build a legal defense against it. For your spouse to succeed, they must have proof of the allegations they have made against you, and your legal team is entitled to challenge any evidence they may bring forward. Being hit with a fault divorce petition can be infuriating. The worst thing you can do is allow your emotions to control your response. Doing so may lead to actions that you will later regret. The best option is to work with your attorney to refute every argument your spouse makes against you. If you have received a petition for divorce, then you should contact the Garden City divorce attorneys at Fass & Greenberg.