On August 15, 2010, there was a major change to the divorce laws in the state of New York. Governor Paterson signed the new liberalized no-fault divorce law. All that is now necessary to allege No-Fault as a ground for divorce in New York, is that the marriage is irretrievably broken for a period of six (6) months. Only one party need allege this, and whether the other party agrees or not, the parties will get divorced. The court still must deal with the ancillary issues of equitable distribution of property, spousal maintenance, custody, visitation, child support and other issues affecting the parties. No-Fault now eliminates the need for “grounds trials” in divorce proceedings.
Cruel and Inhuman Treatment
Behavior to be considered cruel and inhumane treatment must rise to a level that makes it inappropriate for one party to continue to reside with the other party. Examples of allegations that amount to cruel and inhumane treatment are domestic violence and extreme mental cruelty. In the state of New York, the longer the term of the marriage, the more detailed and severe the cruelty must be in order to obtain a divorce.
When one party to a marriage moves out of the marital residence for a period in excess of one year, this is abandonment. Constructive abandonment can also be when one spouse refuses to have sexual relations with the other spouse for a period in excess of one year and during that period neither spouse suffered from any physical malady or mental illness that would have prevented them from having conjugal relations.
In the event one spouse is imprisoned for a period in excess of three years, the other spouse can sue for divorce based on the imprisonment.
Adultery is very often difficult to prove because the law in New York requires corroboration of the adultery. If one party admits to having sexual relations outside of the marriage, it is generally insufficient for the court to grant a divorce on the basis of adultery.
Separation Agreement or Separation Decree
If the parties have entered into a valid Separation Agreement appropriately executed or there is a Separation Decree from the Supreme Court and the parties live pursuant to the Separation Decree and/or Separation Agreement for a period in excess of one year, either party can ensue to obtain a divorce on this no-fault ground.
While not actually “grounds for divorce”, the uncontested divorce is one that is primarily based on the “no fault” grounds. Both parties need to be in agreement with regard to the grounds for divorce, the equitable distribution of the property, child custody, visitation, child support, spousal maintenance and all other matters in an uncontested divorce.
First, an agreement is written detailing all of the terms involving the division of property, child custody, child support, spousal maintenance, visitation and all other issues. Each of the parties then acknowledges this agreement before a Notary Public.
The Plaintiff thereafter serves on the defendant the Summons and Complaint for divorce. The defendant submits an answer neither admitting nor denying the allegations contained in the plaintiff’s complaint. This causes the grounds to go through the court on the basis of a default.