Until July 1, 2010, New York recognized divorces only upon fault-based criteria.1 Thus, in New York, divorce had to be based upon one of the following: (1) cruel and inhuman treatment;2 (2) abandonment for a continuous period of one year or more;3 (3) imprisonment of more than three years subsequent to the marriage;4 (4) adultery;5 (5) conversion of a separation judgment;6 (6) conversion of a written and acknowledged separation agreement after living separate and apart for more than one year.7 Under New York’s no-fault divorce bill, however, a new ground was added, allowing divorce where the relationship between husband and wife had broken down irretrievably for a period of at least six months.8 The grounds do not include allegations of bad conduct against the plaintiff or any of the following: irreconcilable differences; incompatibility; mutual consent; no communication.9 The complaint for divorce must specify the grounds for the divorce and any ancillary relief sought—e.g., attorneys fees, child custody, etc.10
b. Text of Statute(s)
1) N.Y. Dom. Law § 170 – Action for Divorce
An action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on any of the following grounds:
(1) The cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant.
(2) The abandonment of the plaintiff by the defendants such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant.
(3) The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.
(4) The commission of an act of adultery, provided that adultery for the purposes of articles ten, eleven, and eleven-A of this chapter, is hereby defined as the commission of an act of sexual intercourse, oral sexual conduct or anal sexual conduct, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of plaintiff and defendant. Oral sexual conduct and anal sexual conduct include, but are not limited to, sexual conduct as defined in subdivision two of section 130.00 and subdivision three of section 130.20 of the penal law.
(5) The husband and wife have lived apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment, and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree or judgment.
(6) The husband and wife have lived separate and apart pursuant to a written agreement of separation, subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded, for a period of one or more years after the execution of such agreement. Such agreement shall be filed in the office of the clerk of the county wherein either party resides. In lieu of filing such agreement, either party to such agreement may file a memorandum of such agreement, which memorandum shall be similarly subscribed and acknowledged or proved as was the agreement of separation and shall contain the following information: (a) the names and addresses of each of the parties, (b) the date of marriage of the parties, (c) the date of the agreement of separation and (d) the date of this subscription and acknowledgement of proof of such agreement of separation.
(7) The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath. No judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts’ fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce.
2) N.Y. Dom. Law § 173 – Jury Trial
In an action for divorce there is a right to trial by jury of the issues of the grounds for granting the divorce.
3) N.Y. Dom. Law § 175 – Legitimacy of Children
(1) Where the action for divorce is brought by the wife, the legitimacy of any child of the parties, born or begotten before the commencement of the action, is not affected by the judgment dissolving the marriage.
(2) Where the action for divorce is brought by the husband, the legitimacy of a child born or begotten before the commission of the offense charged is not affected by a judgment dissolving the marriage; but the legitimacy of any other child of the wife may be determined as one of the issues in the action. In the absence of proof to the contrary, the legitimacy of all the children begotten before the commencement of the action must be presumed.
Research is ongoing. My search of New York cases citing these statutes did not reveal any cases that are factually relevant or analogous to WMC’s target situations.
d. Practice Pointers
New York law requires parties in divorce or child custody proceedings to use standard forms in their disputes. These forms are available online.11
- 1. Nevertheless, the parties could agree to enter into a separation and have the separation agreement or judgment be the further basis for a divorce after another year. The parties could also agree to an uncontested divorce as long as one of the parties willingly alleged one of the fault-based grounds or had the requisite separation agreement or judgment.
- 2. N.Y. Dom. Law § 170.1.
- 3. N.Y. Dom. Law § 170.2.
- 4. N.Y. Dom. Law § 170.3.
- 5. N.Y. Dom. Law § 170.4.
- 6. N.Y. Dom. Law § 170.5.
- 7. N.Y. Dom. Law § 170.6.
- 8. N.Y. Dom. Law § 170.7.
- 9. “Frequently Asked Matrimonial Questions,” available at http://www.victorylibrary.com/divorce/faq.htm (last visited Apr. 28, 2012).
- 10. Id.
- 11. New York State Unified Court System, Divorce Resources, available at http://www.nycourts.gov/divorce/forms.shtml (last visited Apr. 28, 2012).