Until just a few years ago, couples in New York could not seek a true “no-fault” divorce. To get a divorce in New York before 2010, you had to show that you and your spouse had officially “separated” (see below) or prove that your spouse engaged in misconduct, which led to the end of the marriage.
This all changed in August of 2010 when New York Governor David Paterson signed a “No-Fault Divorce” bill into law. Under the No-Fault Divorce law, New York couples can request a divorce by claiming that there’s been an "irretrievable breakdown" in their marriage, which is just a fancy way of saying they can’t get along anymore, and there’s no real chance for a reconciliation.
No-Fault Divorce in New York
Now, a New York couple may get a no-fault divorce if one of them states, under oath, that the marriage has broken down irretrievably for at least six months.
But before a court will grant a no-fault divorce, the couple must show that all of their divorce-related issues, such as property division, spousal support, child support, and child custody have been resolved. This can be done between the spouses in a divorce settlement agreement or by a court order.
Fault Grounds for Divorce in New York
Divorcing spouses may still seek a fault-based divorce in New York by alleging any of the following grounds:
- cruel and inhuman treatment that makes it unsafe or improper for the couple to continue living together (physical or mental abuse)
- abandonment for at least one year
- incarceration for at least three consecutive years after the marriage, or
If a spouse asks for a divorce based on any of the fault grounds, he or she will have to prove to a judge that the other spouse actually committed the misconduct. So, for example, if the divorce is based on one spouse’s adultery, the “innocent” spouse will have to prove that the “guilty” spouse strayed outside of the marriage, which may require evidence obtained from a private investigator.
Fault-based divorces usually end up in drawn-out divorce battles - complete with lots of dirty laundry being aired out in a public courthouse. These types of intense divorce cases often take a heavy emotional toll on both parties and on any children of the marriage. It’s important to consider very carefully whether filing for a no-fault divorce will provide any advantage that’ll be worth the agony and expense involved.
Divorce Based on Separation
Spouses may also seek a divorce if the couple has separated. To qualify, the spouse requesting the divorce must show that:
- the couple lived apart pursuant to a court-ordered judgment of separation for at least a year, and the spouse seeking the divorce has provided proof that he or she performed the terms and conditions of the judgment, or
- the spouses have lived apart pursuant to a formal written agreement of separation for at least a year, and the spouse seeking the divorce has provided satisfactory proof that he or she has performed all the terms and conditions of the agreement.
Filing for any form of divorce can be complicated if you aren’t familiar with legal processes and paperwork. If you have questions about pursuing a divorce in New York, you should contact an experienced family law attorney in your area for help.