Grounds for Divorce

The following information outlines the types of grounds for divorce honored by the State of New York. Whether you're thinking about filing or you have been served with divorce papers, I offer candid advice aimed at helping you come through this process successfully.

Irretrievable Breakdown

In 2010, New York State finally adopted a new domestic relations law as grounds for divorce that has been long overdue. Known as an irretrievable breakdown, this law states that one party must swear under oath that the relationship broke down irretrievably six or more months prior. In order to file the divorce, however, any and all assets, spousal support, child support and custody matters must be previously resolved.

Abandonment

According to the law, abandonment occurs when your spouse has left you, or kicked you out, and does not intend to return for a period of one or more years. Frequently, the hybrid to abandonment known as constructive abandonment is used. This essentially means one spouse refuses to have sexual relations with the other without justification for a period of one years.

Cruel And Inhuman Treatment

This is where your spouse is being cruel and inhuman toward you. This means that your physical or mental health is in danger if you continue living together. However, if the alleged abusive treatment happened more than five years ago, you cannot divorce for this reason if your spouse objects.

Imprisonment

If your spouse goes to or is in jail for three or more years, you may seek a divorce. If your spouse was released more than 5 years ago, you cannot divorce for this reason.

Adultery

If your spouse commits adultery — that is has sexual relations with another person other than you during the marriage — you have legal grounds for divorce. However, this ground can be dismissed if you did any of the following:

  • Encouraged your spouse to commit adultery
  • Forgave your spouse by having sexual relations with them after you discovered the adultery
  • Committed adultery yourself

Moreover, you cannot divorce because of adultery if it has been more than five years since you discovered the adultery. Lastly, you cannot testify solely yourself to prove adultery. It would be necessary have a witness who can testify.

After A Judgment Of Separation

You may seek a divorce after you and your spouse have lived together separate and apart pursuant to a "Decree of Separation" or "Judgment of Separation," given by the Court, for at least one year. You must have obeyed all of the conditions of the decree or judgment. It is not usual to have a Judgment of Separation because it requires similar proof to that needed for a divorce. Most people skip this judgment and go directly to divorce. If you need the medical insurance of your spouse it may be a viable option.

After A Separation Agreement

Similar to the above, you may seek a divorce after you and your spouse have lived separate and apart for a period of one or more years pursuant to written "Agreement of Separation." Both you and your spouse must acknowledge and sign this agreement before a notary public. You must obey all the conditions of the agreement. The terms of the agreement get locked into the divorce judgment, except issues relating to child support, custody and visitation.

Thinking About Filing Divorce? Contact My Firm For Experienced Guidance.

When you contact my office, we will talk through your situation and outline your options. I am not in the business of selling fantasies — you can trust that I will give you an honest appraisal of your case. Call 718-720-1000 or contact me online to schedule a free initial consultation.