Lawyers For Divorce
The grounds for divorce in New York are set forth in Section 170 of New York's Domestic Relations Law (DRL). Briefly summarized, the grounds for divorce in New York include:
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(a) Cruel and Inhuman treatment of the plaintiff by the defendant such that the conduct endangers the physical or mental well being of the plaintiff or makes it unsafe or improper for plaintiff to cohabit with the defendant;
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(b) Abandonment of the plaintiff by the defendant for a period of one or more years;
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(c) Confinement of the defendant in prison for a period of three or more years after the marriage;
(d) Commission of adultery, provided that such conduct has not been forgiven by the Plaintiff and the action for divorce has been commenced within five years after the discovery of the alleged conduct;
(e) The husband and wife have lived apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment; and
(f) The husband and wife have lived separate and apart pursuant to a written agreement of separation, signed in the manner and form required to entitle a deed to be recorded, for a period of one or more years after the separation agreement was signed.
It is ironic (and, for many people, surprising) that New York remains the only state without a no-fault basis for divorce, despite its reputation as one of the more liberal states. Judges and litigants alike have expressed exasperation at the failure of New York's legislature to approve no-fault divorce. For New York divorce lawyers, the lack of no-fault divorce is dealt with most often by counseling clients to use abandonment as the basis for their divorce or by drafting a separation agreement.
The New York divorce ground that comes the closest to no-fault divorce is 170(6), which provides for a "conversion" divorce where the husband and wife have lived separate and apart for a period of one year after executing and acknowledging a separation agreement. It should be noted that the requirements are strictly enforced: to qualify for a conversion divorce, the separation agreement must be in the form required to entitle a deed to be recorded. Some litigants have had their complaints for divorce denied where their agreements were prepared and executed pursuant to the more lenient standards in other states.
Abandonment is the ground relied upon by most litigants who seek an uncontested divorce (i.e. a divorce where both parties are in full agreement as to both grounds and financial issues). In an uncontested divorce matter, a knowledgeable New York divorce lawyer will guide his or her client toward abandonment as the least offensive ground that is least likely to provoke an antagonistic response on the part of the client's spouse.
Abandonment can refer to two different sets of circumstances. Actual abandonment refers to the act of the defendant spouse physically leaving the marital residence or locking the other spouse out of the marital residence. Constructive abandonment refers to the refusal of the defendant spouse to engage in sexual relations. In all situations, the offending spouse must be the defendant. A plaintiff is not permitted to seek a divorce based on his or her abandonment of the other spouse. Surprisingly, at least some New York divorce lawyers are unfamiliar with these basic rules: each year, several lawyers file divorce complaints in which the attorneys allege that their own clients have engaged in the act of abandonment.
On April 16, 2007, Justice Robert A. Ross, in Nassau County Supreme Court, issued a decision that summarizes the profoundly negative consequences of New York's antiquated divorce law:
In all-too-frequent occurrence, matrimonial courts are faced with innumerable instances where efficacious resolution of economic issues and custody determinations are backseated and delayed by fault (grounds) trials. The party without resources to afford such litigation, or, the party who chooses not to aggressively allege the faults of his/her spouse, is often at a tactical disadvantage -- simply because an opposing party seeks to impose financial leverage or exacting personal animus, due to the current statutory scheme
Molinari v. Molinari, Supreme Court, Nassau County (101728-05 (April 16, 2007). However, during the two years that have passed since Judge Ross issued his decision in Molinari, New York continues as the last state without a no-fault basis for getting divorced. Although the issue of no-fault divorce has been discussed and debated in New York, there is no sign that the divorce laws are going to be changed in the near future.
Despite the failure of New York to adopt no-fault divorce, the issue of fault does not affect the court's adjudication of financial issues, such as maintenance (alimony) or equitable distribution (distribution of marital property. Under New York law, determinations with regard to alimony (referred to in New York as "Maintenance") are controlled by Domestic Relations Law (DRL) § 236. This Statute sets for 10 specific factors that the court must consider in decisions pertaining to maintenance. There is an eleventh, catch-all provision that directs the court to consider "any other factor which the court shall expressly find to be just and proper."
The primary consideration in determining alimony is the parties' pre-separation standard of living. Courts will also focus on the length of the marriage, the parties' respective earning capacities, income disparities, and the tax consequences that would arise from a maintenance award.
Despite the broad discretion afforded to a trial court in making decisions with regard to equitable distribution and maintenance, marital fault is generally not a factor that may be considered. In its now famous decision entered in the matter OBrien v. OBrien, the New York Court of Appeals held that marital fault is not relevant to the financial issues decided in divorce except in them most extreme and shocking situations. The Court reasoned as follows
marital fault is inconsistent with the underlying assumption that a marriage is in part an economic partnership and upon its dissolution the parties are entitled to a fair share of the marital estate, because fault will usually be difficult to assign and because introduction of the issue may involve the courts in time-consuming procedural maneuvers relating to collateral issues
In most New York divorce cases, fault is not heavily litigated, and typically, a New York divorce attorney will counsel his or her clients to focus on financial issues, rather than divorce grounds. The exception is when one party uses the issue of fault as leverage to extract a more favorable financial settlement in divorce. This may occur where one party has a strong incentive, such as remarriage, for a divorce. In many instances, litigants are frustrated by the refusal of the Court to focus extensively on the particular incidents that led to the breakdown of the marriage. However, unless grounds are being contested, the financial issues are frequently unaffected by allegations of marital misconduct.
The current divorce regime in New York is confusing and, for the uninitiated, surprising. New York remains the last holdout of fault-based divorce, yet it deprives its judges of any legal basis for utilizing fault as a factor in deciding the financial issues that are the most important for most litigants. This situation will continue until the New York legislature votes on a new, no-fault divorce ground.
Grounds For Divorce in New York - The Last Bastion of Fault-Based Divorce
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