New York 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 on of the fault based grounds or has the requisite separation agreement or judgment.
Table of contents |
2 Procedure 3 Residency requirements 4 Ancilliary Issues 5 External links |
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)
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
- Incompatibility
- No-fault
- Mutual consent
- No communication
Cruel and inhuman treatment
Cruel and inhuman treatment must be behavior by the defendant that rises to the level such that it makes it impossible 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.
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.
Once the case is filed and served the parties must request a Preliminary Conference within ninty 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 then 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:
Abandonment
Abandonment may be acutal 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 cohabitating. Constructive abandonment occurs when one spouse refuses to engage in sexual relations with the other spouse for a period of one year.Adultery
Adultery is difficult to prove as it requires corraborating evidence from a third party; thus a statement by the defendant that they had sexual relations with a third party may not be sufficient to convince the court to grant a divorce to the plaintiff.Procedure
Contested Divorce
The grounds for divorce may be decided by a jury or by a judge, all other ancilliary relief is considered equitable in nature and must be decided by the judge alone.Uncontested divorce
Residency requirements
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.Ancilliary Issues
Children
There are three keys issues when children are involved in a divorce or separation: Property
Equitable distribution 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.Spousal Support
Today alimony is known as "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. 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.Legal Fees
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.Name Change
The wife in a divorce often wants to use her maiden name or a prior name if she has changed her name before marriage and wants to keep that name after divorce. The court routinely grants the right to such a name change in the final divorce decree.
External links