GROUNDS FOR DIVORCE

My spouse of 15 years told me that he wants a divorce. I suspect that he is having an affair. I don't want a divorce. Can I just say no?

New York law provides for both fault and no-fault divorce, the latter only as of October 13, 2010. In New York, an action for “no-fault” divorce requires that “the relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath.” (N.Y. Domestic Relations Law §170(7)). Prior to this change in the law, one of four fault grounds had to be established for a court to grant a divorce.

In New York, the available fault-based grounds for divorce are: (1) Adultery; or (2) Abandonment, either physical or sexual (sexual abandonment is often referred to as constructive abandonment), for a period of one or more years prior to the commencement of the divorce action; or (3) Cruel and inhuman treatment that endangers the physical or mental well-being of the plaintiff as to render it unsafe or improper for the plaintiff to cohabit with the defendant; or (4) Imprisonment of the defendant for a period of three or more consecutive years after the marriage of plaintiff and defendant.

What is the definition of adultery?

Adultery is the commission of an act of sexual or deviate sexual intercourse, voluntarily performed by the defendant, with a person other than the plaintiff, after the marriage of plaintiff and defendant.

What constitutes physical abandonment?

Generally, the ground of abandonment requires a voluntary separation by one spouse from the other for a period of one year or more with the intent not to resume cohabitation. The abandonment must be without the consent of the other spouse and without justification. If physical abandonment is with the consent or acquiescence of the other spouse, it cannot be used as a ground for divorce.

What does constructive abandonment mean?

This term is used to describe one spouse's unjustified refusal for a period of one year or more to have sexual relations with her or his spouse. However, if the refusal is consented to or acquiesced in by the other spouse, it ceases to be a ground for divorce. In addition, a spouse who locks out her or his spouse or whose abuse drives the spouse from the home may have committed constructive abandonment.

My spouse is verbally abusive and in general makes my life miserable. Does this constitute cruel and inhuman treatment?

The spouse alleging the cruel and inhuman treatment ground for divorce must prove that she or he suffers from cruel and inhuman treatment which endangers his or her well-being and makes it unsafe or improper to continue living with the other spouse. Unfortunately, for the spouse who seeks to end a loveless and miserable marriage against the wishes of the other spouse, mere incompatibility will not meet the statutory criteria for cruel and inhuman treatment, particularly where the marriage has a long duration. To obtain a divorce on cruelty grounds, there must be substantial evidence of cruel and inhuman treatment.

My spouse and I each want to terminate our marriage but neither of us can prove fault.. What are our alternatives?

New York Divorce law allows for a "no-fault" divorce by one party stating under oath that the marital relationship has irretrievably broken down for a period of at least six months. It is important to note that under the "no-fault" divorce provision, the divorce will not be granted until the economic distribution of marital property, child custody and visitation issues have been resolved and incorporated into the divorce judgment.

Additionally, where spouses have lived apart for one year or more pursuant to a signed separation agreement and the plaintiff has submitted proof that he or she has substantially performed the terms and/or conditions of the judicial decree or judgment granting that agreement, New Yorkers can obtain what is in essence a "no fault" divorce. The separation agreement must conform to statutory requirements and certain formalities must be observed when it is signed. A year after the signing of a separation agreement, either party may file it with the court prior to commencing an action to obtain a divorce. No marital fault of either party needs to be shown. This way of obtaining a divorce is sometimes referred to as a "conversion divorce," although the conversion is not automatic. An action for divorce must be commenced.

A third option allows for one spouse to agree not to contest the allegation of fault made by the other. The spouses then reach an agreement on the financial and custodial issues and request that the court sign a judgment of divorce. You should be aware, however, that it is illegal to fabricate grounds for obtaining a divorce where none exist, in order to take advantage of this procedure.

Your lawyer can advise you as to which of the foregoing procedures, is appropriate in your circumstances.

In a divorce proceeding does it make any difference who is the plaintiff and who is the defendant?

In a legal action, the plaintiff is the party who initiates the action for divorce. The defendant is the party who responds to the action. A defendant in a matrimonial action may "counterclaim" for a divorce in that action. The emergence of no-fault divorce has reduced the weight of marital fault in resolving economic issues upon divorce. Thus, when divorce is mutually desired and based on a non-fault ground, the relative advantage of being the plaintiff or defendant in a divorce action is largely strategic and tactical.