Grounds for Divorce in New York

Who Can File for Divorce in NY?

Prior to 2010, when New York joined the rest of the states with its own version of no-fault divorce, the only way to get divorced was through fault-based proceedings or after a legal separation of at least 12 months. At-fault divorce essentially means that one spouse, the plaintiff, files a divorce suit against the other party, the defendant, alleging one of four specific grounds that would justify the legal dissolution of a marriage under New York law.

All actions for divorce, both fault-based and not, are described in New York Domestic Relations Law §170. According to this section, the following are valid grounds for an at-fault divorce:

• Cruel and Inhuman Treatment: According to § 170.1, a spouse may file for divorce on the grounds of cruel and inhuman treatment. This may include physical abuse, emotional abuse and other conduct that "endangers the physical or mental well-being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant." The plaintiff in this situation is the spouse who is filing for divorce and has claimed such treatment by the other spouse, the defendant. This is one of the possible approaches to an at-fault divorce in New York.
• Abandonment: Abandonment is another ground for an at-fault divorce in New York. According to § 170.2, a spouse may file for divorce if the other spouse has abandoned him or her for a period of one or more years.
• Imprisonment: Yet another approach to an at-fault divorce, imprisonment offers probable grounds for divorce if a spouse has been imprisoned "for a period of three or more consecutive years after the marriage" of the two spouses, according to NY Domestic Relations Law § 170.3.
• Adultery: The most common grounds for at-fault divorce in New York and across the U.S., adultery involves the claim that a spouse has engaged in sexual conduct with a person other than his or her husband or wife. Any type of sexual intercourse, oral sexual conduct or anal sexual conduct, voluntarily performed or engaged in, after the marriage, may constitute an act of adultery. This is described under § 170.4.
• Separation: Under § 170.5 and § 170.6, spouses may file for divorce on the grounds of a separation judgment or written separation agreement, if they have been living "separate and apart" for at least one year pursuant to such judgment or agreement. Divorce based on these grounds may be granted if spouses can prove to the court that they have performed all the terms and conditions of their separation judgment or agreement.
• Irretrievable Breakdown: A relatively new grounds for divorce in New York, made into law in 2010, spouses may file on the basis that their relationship "has broken down irretrievably for a period of at least six months." This is the only grounds for a no-fault divorce in the state and marked a significant change, as New York was the last state to allow for no-fault divorce in the U.S. This is under section § 170.7.

No-Fault Divorce

When at-fault divorce was the only option, this led to the continuance of a large number of dysfunctional and unhappy marriages, but fortunately, the state legislature changed the law. Now it is possible to file for divorce simply by claiming that the marriage has been "irretrievably broken" for the past six months. This means that you can end your marriage far more easily and begin a new chapter of your life.

New York was the last state to implement some form of no-fault divorce. Though a divorce could also be granted after spouses lived separate and apart pursuant to a valid separation judgment or agreement, this was only possible after a 12-month time period. No-fault divorce opened the door for married couples to end their marriages without having to allege adultery, inhuman treatment or other wrongdoing – and without having to live under a separation agreement for a year.

Although under no-fault divorce only one party need claim an irretrievable breakdown of the marriage under oath, all other matters pertaining to the divorce must be resolved, either through an agreement by the spouses or by the court and incorporated into the divorce judgment.