Grounds for Divorce in the State of New York

The grounds in divorce in New York are rather stringent when compared to more liberal state’s divorce statutes. For example, in many states “irreconcilable differences” is a common ground for a “no-fault” divorce but it is not in New York. Instead, the only no-fault ground for divorce in New York is living apart pursuant to a written separation agreement. This ground for divorce is consensual as both spouses sign off on the separation agreement that becomes the basis for divorce.

The grounds for divorce in New York are:

• abandonment
• adultery
• cruel and inhuman treatment

Another ground for divorce is if your spouse has been imprisoned for three or more consecutive years during the marriage.

Cruel and inhuman treated is based on conduct by a defendant spouse that so physically or emotionally endangers the plaintiff spouse that the plaintiff spouse cannot continue to live with the defendant spouse. Generally, there has to be a pattern or course of conduct to use this ground. For example, if a husband has verbally and perhaps physically abused his wife during the course of the marriage, then this ground for divorce could be utilized. The key factors in determining if this is sufficient would include the length of the marriage, any medical records documenting the abuse and the ages of the spouses. It is important to note that this is not a sufficient ground generally if the spouses only had one big fight.

Adultery is when the defendant has engaged in sexual intercourse with someone other than the plaintiff during the course of the marriage. It is possible for a spouse to present circumstantial evidence of adultery to use this as a ground for divorce. For example, if it is evident that the defendant spouse has a lascivious desire for someone else and there is evidence of opportunity, inclination and intent, then this ground may be used to gain a divorce.

Abandonment is the voluntary failure to exercise the rights and fulfill the responsibilities of marriage, parenthood and/or ownership of property. There are four elements necessary to prove abandonment as a ground for divorce. These elements are voluntary separation of one spouse from another, with the intent not to resume the marriage, without the consent of the other spouse and without justification. It is important to note that “voluntary” separation and “intent not to resume” the marriage should be determined in consultation with an attorney. Also, if spouses have mutually decided not to live together, the abandonment standard cannot be used as a ground for divorce. Furthermore, if a spouse is justified in leaving the marital home, abandonment cannot be utilized as a ground.

Constructive abandonment is a variant on abandonment wherein one spouse locks the other spouse out of the marital home or otherwise forces the other spouse to leave. Also, if one spouse refuses to engage in sexual relations for one year or more when the other spouse expresses their wish to engage in relations, this may also be construed as constructive abandonment.