Grounds for Divorce in the State of New York

What are the 7 grounds for divorce in New York?

1. Irretrievable Breakdown: The relationship between you and your spouse has broken down irretrievably for at least six months. If you filed before October 12, 2010, you can not use this new reason.  The court cannot give you a divorce on these grounds until after property, custody, visitation, spousal support, and child support have been settled or decided.

2. Cruel and inhuman treatment: 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. If the abusive treatment happened more than 5 years ago, you cannot divorce for this reason if your spouse objects.

3. Abandonment:  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.

4. Imprisonment: If your spouse goes to jail for three or more years. However, if your spouse was released more than 5 years ago, you cannot divorce for this reason.

5. Adultery: 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.  You cannot divorce because of adultery if it has been more than 5 years since you discovered the adultery. You cannot testify yourself to prove adultery, so you must have a witness who can testify.

6. Judgment of Separation: You and your spouse have not lived together because of a “Decree of Separation” or “Judgment of Separation”, given by the Court, for at least one year. You must obey all the conditions of the decree or judgment. It is unusual to have a Judgment of Separation because it requires similar proof to that needed for a divorce.

7. Separation Agreement: In New York, when a married couple voluntarily enters into a properly acknowledged separation agreement and then waits at least one year, they can be divorced.