Taking a look at grounds for divorce in New York and uncontested vs. contested divorce.
Filing for divorce in New York essentially falls into two categories: uncontested and contested divorce. Every divorce needs to fulfill a legally recognized reason for dissolving the marriage, also known as grounds. We’ve gotten various questions from clients about grounds for divorce and how those rules have changed over time, so we thought we would share some insight on the issue.
Uncontested divorce occurs when both spouses agree to a divorce proceeding. There are no disagreements about issues related to the divorce like the division of assets and child visitation or custody. Uncontested divorce is generally a simpler process than a contested divorce because there are fewer unresolved issues between both spouses.
Contested divorce takes place when spouses differ on one or more of the issues related to their divorce. While a couple may agree to the idea of getting a divorce, their own opinions may differ on issues of alimony or what to do with the marital residence. The parties need to appear in Court with their attorneys as they work through each issue with assistance from the Court. If a resolution isn’t possible, then a trial date is set to allow both parties to give testimony and information that will help a judge make final decisions on each contested issue.
Starting a case as a contested matter is not uncommon, nor is it a reason to feel like a bad spouse or parent. An experienced attorney in matrimonial issues will have a good idea of what you should realistically expect from the Court if the matter goes to trial. And that experience should translate into a fair and reasonable settlement before the matter goes to trial.
Grounds for Divorce in New York
Another key question facing many of our clients is establishing grounds for divorce in New York – what are they? Grounds for divorce create specific motives for dissolving a marriage. One of those grounds for divorce is a relatively new one that began in October of 2010. This made New York a “no-fault” divorce state, which is defined as “an irretrievable breakdown of the relationship for a period of at least six months.” It does not assign blame to either party, and most divorces these days use the new no-fault ground. You can find more info about New York Domestic Relations Law §170 here.
Cruel or inhumane treatment by a spouse is another valid ground for divorce. Malicious mental or physical treatment must have occurred within five years of filing for a divorce, and this treatment must create a dangerous environment for the victim if he or she were to continue living with the other spouse.
Abandonment is a ground for divorce and it is broken down into two types: physical and constructive. Physical abandonment happens when one spouse leaves the marital residence for at least one year and does not intend to return. Constructive abandonment occurs when one party refuses to have sexual relations with the other spouse for one year or more without any justification.
Adultery is a commonly known ground for divorce, and clients often expect a judge to be angered and punish the straying spouse. However, unless the conduct is incredibly out of line, the judge will only see adultery as just another ground for divorce and move on to the unresolved matters like child custody and division of property. Furthermore, adultery must be proven at trial and must be corroborated by the evidence presented. In all, it is a far less satisfying ground and yields less “favor” from the Court than the mistreated spouse may think it will yield.
Imprisonment for a term of three years of more is another ground for divorce. And a written separation agreement can become a ground for divorce after one year. This is sometimes referred to as a “conversion” divorce.
Sometimes, spouses do not wish to divorce immediately but prefer to live separately, using something called a “Decree of Separation” or “Judgment of Separation.” This Order of the Court can be used if one spouse’s reluctance to leave the other without healthcare coverage or insurance. After one year, this Decree or Judgment can become valid grounds for divorce as well.