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Divorce & Separation in New York

NYS Divorce Laws

An Overview of Separation & Divorce Laws in NY

Over the course of the past century, the growing rate of failed marriages has had its effect – whether directly or indirectly – on practically ever family. The information on this page was created as a brief summary of divorce laws in New York State.

Marriage is a civil contract. As such, New York State has an interest in preserving marriages. Likewise, only the court can dissolve a marriage relationship, either by divorce or annulment. Marriage contracts can also be altered by a decree of separation, also granted by the court. No matter the case, a Supreme Court proceeding will be required in which the person seeking the divorce, separation, or annulment must prove "grounds" for said action.

How to Get a Divorce in NY

How does one obtain a divorce, separation decree or annulment in New York State? First of all, "grounds" or valid reasons prescribed by law must exist and be proven to the court, even if both parties agree that the marriage relationship should be altered.

Unlike most states, New York will not grant a divorce for incompatibility," "irreconcilable differences," or for a dead" marriage. We do not have a "no-fault" divorce in New York State, except where the parties have been separated through a separation decree or agreement for longer than one year and the party seeking the divorce has substantially complied with the terms of the separation.

Grounds for Divorce in NY

In New York, four of the "grounds" for divorce are based on the fault of one of the parties: cruel and inhuman treatment, abandonment for more than a year; imprisonment for three years or more; and adultery.

The other grounds — one year of living apart under a separation agreement or decree that was granted by a court — afford New Yorkers a no-fault" divorce where neither spouse is considered to be "at fault."

Cruel and Inhuman Treatment

When it comes to a divorce in New York, "cruel and inhuman treatment" can be either physical or mental. In order for cruel treatment to be counted as grounds for divorce, it must affect the person who is seeking the divorce so severely that it is not safe for the marriage to continue. Incompatibility between husband and wife alone is not enough to get divorced in the state of New York.

Examples of "cruel and inhuman treatment" that have been accepted by the court in the past include:

  • Physical attacks
  • Constant screaming, use of profanity, or other verbal abuse
  • Gambling away marital assets
  • Being away from home extremely often with no explanation
  • Going out with other men or women
  • Wrongful accusations toward the other spouse of adulterous relations

Alcoholism, Mental Illness & Divorce in NY

Alcoholism is not usually sufficient grounds for divorce in NYS, unless said alcoholism results in cruel or violent behavior when your spouse is intoxicated, so much that you fear for your safety.

Mental illness is also not a sufficient grounds for divorce unless the other spouse's behavior as a result of said illness could be defined as "cruel and inhuman treatment." Mental illness is not a defense to cruel and inhuman treatment. A court may grant a divorce when a spouse has been incurably mentally ill for a period of five (5) years or more.

The courts have held that, in cases of long-term marriage (often 15 or more years), the cruel and inhuman treatment must be more substantial to justify a divorce. This means that what might be considered "cruel" in a shorter marriage may not be sufficient to end a marriage relationship that has lasted 15 or more years.

No two cases are alike, though, and each stands on its own facts. Ultimately it is the court that decides whether or not there are sufficient grounds for the marriage to be dissolved. Additionally, Generally, the actions or conduct that make up the grounds for divorce must have occurred within the five years leading up to the filing of the divorce papers.

Abandonment for One or More Years

As grounds for divorce in New York, "abandonment" means that your spouse intentionally left you for at least one year.

In order to file for divorce on the grounds of abandonment, you will also need to prove that the abandonment was not justified – for example, you didn't "kick them out" and lock the door or treat them so poorly that they couldn't take it anymore. You will also need to prove that your spouse had no intention of returning when they left and you had no reason to think they would return.

"Constructive abandonment" is the unjustified refusal by one spouse to have sexual relations with the other spouse and may also be considered "cruel and inhuman treatment" and grounds for divorce in NY.

Refusing to relocation with a spouse is generally not considered "abandonment" when it comes to divorce. For example, if a wife has her own career that would be damaged or terminated if she were to relocate with her husband when he moves, and she chooses not to relocate, then that is not considered "abandonment" in this context.

There is no statute of limitations on abandonment, meaning that there is no "time limit" in which you must file for divorce after being abandoned. That being said, a separation agreement does negate abandonment as grounds for divorce. This is because, in order to sign a separation agreement, both parties consent to living apart.

Imprisonment for Three or More Years

Divorce can also be filed on the grounds of imprisonment for three or more years. In order for imprisonment to qualify as grounds for divorce, the defendant must have served three years or more in prison before the divorce action can be brought. This applies even if the conviction is later overturned or reversed.

Adultery

Bringing an action on the ground of adultery, especially if your spouse is not going to contest it, is not a simple matter. The proof of adultery here is difficult- you are not permitted to testify against your spouse, and you must have a witness ready to convince the court that your mate did engage in sexual relations with another person. Adultery is usually proven by circumstantial evidence, that is, by showing that your spouse had the opportunity, inclination and intent to engage in sexual relations with the other person.

In addition, there are four defenses to the charge of adultery, and if any of these are proven, the court will deny the divorce:

  1. Procurement" or "connivance"-Procurement means that one spouse actively encouraged the other to commit adultery. Connivance is similar to "collusion" or "consent" by a spouse to the adultery.
  2. "Condonation" or forgiveness-Having sexual relations with your spouse after discovery of his or her adultery is an absolute defense to your divorce action based on the adultery.
  3. Statute of Limitations"-This means that there is a time limit (five years from your discovery of the first unforgiven act of adultery) for you to bring the divorce action.
  4. Recrimination"-This defense means that you, too, were guilty of adultery. No matter how convinced the court is that adultery was committed by both parties, it is forbidden from granting a divorce on grounds of adultery. Thus, if each spouse proves the adultery of the other, neither can obtain a divorce against the other on that ground.

Living Apart and Separations in NY

Living apart, without a formal written agreement of separation or a court judgment of separation, is not recognized as a ground for a New York State divorce, no matter how long you continue to live separately.

Regarding separations, there are only two valid ways to dissolve a marriage. Each requires separation of one or more years. The law requires that you and your spouse live apart either under a written contract of separation or under a court judgment of separation and the spouse seeking the divorce must have substantially complied with the terms of the agreement or judgment.

New York Separation Agreements

A separation agreement is a detailed contract which should be prepared by attorneys, where the parties agree to live separate for the rest of their lives. It should set forth the respective rights and duties of husband and wife with respect to the custody and access to children, support payments, distribution of property, and all other matters pertaining to the marital relationship. The same attorney is absolutely prohibited from representing both spouses no matter how "friendly" the matter may appear on the surface.

Certain vital formalities must be carefully followed, or the written agreement will not qualify as a ground for divorce. Here, the skill and experience of the attorneys for the husband and wife are uniquely valuable in helping them reach an agreement which will be fair, just and reasonable to both parties and their children.

The agreement or a memorandum of the agreement is filed (with complete confidentiality) with the clerk of the county where either spouse lives. At the end of one year from the date of the agreement, either spouse may sue the other for a "no-fault divorce.

All that must be proven to the court is that the agreement was duly executed and acknowledged and was properly filed; that the spouses have in fact lived apart during the period of the agreement up to the time of the divorce action; and that the plaintiff has substantially complied with the terms of the separation agreement. The court will grant a divorce based on that proof.

Separation Decree in NYS

A judgment of separation is another type of separation granted by the Supreme Court. It is based on the same "fault" grounds as for divorce — cruel and inhuman treatment, abandonment (except it can be less than one year, in this case), imprisonment, and adultery.

Also, "non-support" is a ground for a decree of separation, while it is not a ground for divorce.

One year after a judgment of separation has been granted by the court, either party may then file for a "no-fault" divorce on the grounds of having lived apart for at least one year. Note that a divorce is not automatic after a year. Court action must still be taken to dissolve the marriage contract.

Annulment in New York

A man and a woman must be legally capable of entering into a valid marriage. If the parties are under a disability, then the marriage can be annulled — that is, it can be voided. If either spouse is incurably incapable of having sexual intercourse, then the marriage may be annulled.

A marriage is only valid if both parties are 18 years or older, with the exception of one party being between 16 and 18 years old and with the consent of their parents for them to marry, or under 16 years old if the court has approved that they may marry. No one under 14 years of age can marry in New York under any circumstances.

What this all means is that a marriage where one or both persons are under the age of 18 may be annulled at the discretion of the court if the spouse who is under 18 wants an annulment.

Another ground for annulment is incurable insanity. If either partner becomes incurably insane for five years or more after marriage, then the marriage can be annulled. The sane spouse, however, may still be required to support the insane spouse for life.

A marriage may also be annulled on the ground of force or duress. For a marriage to be valid, both parties must knowingly consent to the marriage, but that consent may be void if it was the result of force or duress. Additionally, if either spouse cannot understand the nature, effect and consequences of marriage, then their consent may be void.

It may also be annulled where the consent was obtained by fraud, provided the fraud was such that it would have deceived an ordinarily prudent person and was material to obtaining the other party's consent. The fraud must be such as to go to the essence of the marriage contract. Only the injured spouse can obtain the annulment on lack of consent. However, cohabitation (sexual intercourse) evidencing forgiveness is an absolute defense.

Special Proceeding to Dissolve a Marriage

Where your spouse is absent for five years, you may bring a special proceeding in Supreme Court to dissolve the marriage. You must prove that your spouse has been absent for five successive years, without being known to be alive; that you believe that your absent spouse is dead; and that you made efforts to discover that he or she is still living and no evidence was found. After the dissolution becomes final, the reappearance of your absent spouse does not revive your marriage.

Equitable Distribution Law

Division of assets and the fixing of support are covered by the Equitable Distribution Law. The statute is founded on the philosophy that a marriage, especially one of long term duration, is an economic as well as a social partnership. Two classes of property were created, known as "marital" and "separate" property. Marital property is all property acquired during the marriage (regardless of how title is held), except inheritance, gifts from third persons, compensation for personal injuries and property acquired after the start of a divorce action.

Marital property and marital debts are distributed between spouses in a dissolution action on flexible and equitable principles. Valuation of marital property may require expert advice. Alimony under the statute is referred to as "maintenance" and based upon factors set forth in the statute may be permanent or limited to duration. The distribution of marital property and the award of support as a result of matrimonial negotiations or proceedings may involve complicated and vital tax consequences to both parties which require expert advice.

Matrimonial Rules of Practice

As of November 30, 1993, there are new Rules in matrimonial cases, many of which concern client-attorney relationships and much of which should expedite and streamline court process. Some of these Rules include the following:

  1. Prior to signing a retainer, a lawyer must give every matrimonial client a written statement of the Client's Rights and Responsibilities.
  2. Representation requires a written retainer which must ultimately be filed with and reviewed by the Court.
  3. There are no non-refundable retainers in matrimonial proceedings. However, minimum fees are permissible if they meet certain standards.
  4. Security interests (mortgages, confession of judgment) must be specified in the Retainer Agreement and only are permitted by court order, once the opposing party is given notice.
  5. Every sworn statement must be certified as truthful by the attorney. Most lawyers require clients to verify that the client has provided truthful information. If you tell your lawyer anything which will be contradicted by sworn statements in your case, the lawyer cannot certify anything which the attorney knows to be untruthful.
  6. Fee disputes are now subject to binding arbitration if the client initially determines to seek arbitration.
  7. Expedited court proceedings (sometimes known as "fast track" cases) will be utilized. Many cases which do not involve complicated matters (complex cases sometimes involve economically valuing closely held businesses) will be tried within six months after the court holds a preliminary conference. These conferences will be scheduled shortly after the first legal papers are served. Expert reports and responses will be served before trials.

Spousal Maintenance

Spousal maintenance may be awarded to either party based upon a number of factors including the prior standard of living of the parties, the present and future earning capacity of the parties, and the ability of the party seeking maintenance of spousal maintenance to become self-supporting. The spousal maintenance awarded may be for a limited period of time or for an indefinite period of time. The parties may, by written agreement, waive the right to spousal maintenance.

Child Support

The basic child support obligation to be paid by the non-custodial parent is based upon a percentage of the combined parental income. For one child the amount is 17%, for two children 25%, for three children 29%, and for four children 31%.

In addition to the basic child support obligation, the non-custodial parent may be obligated to pay for a portion of the child care expenses related to the custodial parent's employment or education which would lead to employment. Health care expenses for the children are apportioned between the parents based upon their combined parental income. The non-custodial parent also may be directed to pay for educational expenses.

However, if the amount of the basic child support obligation is unjust or inappropriate, the non-custodial parent's pro-rata share of the child support obligation may be determined by other factors and not by the percentages mentioned above. The parents may avoid the use of the percentages in determining the amount of child support by executing an agreement setting forth the amount of child support which they believe to be fair.

An agreement determining the amount of child support must satisfy certain technical provisions of the Child Support Standards Act. A lawyer can help the parties comply with these technical provisions.

Neither parent has any obligation to support a child once the child reaches 21 years of age. Child support may end before 21 years of age under certain circumstances such as the gainful employment of the child or the child's willful refusal to maintain a relationship with the noncustodial parent.

Child support will be awarded by a Family Court as part of a child support proceeding or by Supreme Court as part of a divorce, separation, or annulment proceeding. Even if there is no matrimonial judgment awarded, the court will make an award of child support to the custodial parent.

These and other changes in the way contested matrimonial matters are handled should make the process more effective for everyone.

This page, which is based on New York law, is intended to inform, not to advise. No one should attempt to interpret or apply any law without the aid of an attorney. Produced by the NYSBA Public Relations Committee in cooperation with the Family Law Section.

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