Until October 2010 New York State law only recognized divorces based upon fault based criteria and b ilaterial “no fault” where, the parties may agree to enter into a separation and have the separation agreement (executed in the form of a deed) or judgment be the further basis for a divorce after one year. On October 12, 2010 a new provision was added to New York law allowing for unilateral “no fault” based upon a six month breakdown of the marital relationship, under DRL 170(7). The parties may also agree to an uncontested divorce as long as one of the parties is willing to allege on of the fault based grounds or has the requisite separation agreement or judgment.
The cause of action for divorce in New York state (accusations against the defendant by the plaintiff that are grounds for divorce) are limited to:
- Cruel and inhuman treatment (Domestic Relations Law [DRL] §170(1))
- Abandonment for a continuous period of one year or more (DRL §170(2))
- Imprisonment for more than three years subsequent to the marriage (DRL §170(3))
- Adultery (DRL §170(4))
- Conversion of a separation judgment (DRL §170(5))
- Conversion of a written and acknowledged separation agreement after living separate and apart for more than one year (DRL §170(6))
- The relationship between husband and wife has broken down irretrievably for a period of at least six months (DRL §170(7))
One or more of these grounds for divorce must be used if one party to the marriage wants a divorce. The parties can also disagree over child support, custody, alimony, division of joint assets or who is going to pay legal fees. These are known as “ancilliary relief” that are requested by one or both of the parties. All divorces, even by uncontested consent, must be a based on one of the seven gounds stated above.
The grounds do not include accusations of bad conduct against the plaintiff unless such bad conduct rises to the level of cruel and inhuman treatment.
Cruel and inhuman treatment must be behavior by the defendant that rises to the level such that it makes it impossible for the plaintiff to continue to reside with the defendant as husband and wife. Allegations under this ground include allegations of domestic violence and repeated, extreme mental cruelty. Having disagreements with your spouse, or even fighting continously is not necessarily cruel and inhuman treatment.
The ground known as “abandonment” may be acutal or constructive, “actual abandonment” is usually one spouse leaving the marital residence without the consent of the other spouse without intention to return. One spouse may also lock out the other spouse from the marital residence preventing the parties from cohabitating. “Constructive abandonment” occurs when one spouse refuses to engage in sexual relations with the other spouse for a period of one year prior to the filing of the divorce action. If the parties mutually agree to live apart, or cease engaging in marital relations while living together, such consensual circumstances cannot be used as the grounds for an abandonment divorce.
Adultery is difficult to prove as it requires corraborating evidence from a third party; thus a statement by the defendant that they had sexual relations with a third party may not be sufficient to convince the court to grant a divorce to the plaintiff.
The grounds for divorce may be decided by a jury or by a judge, all other ancilliary relief is considered equitable in nature and must be decided by the judge or a referee appointed by the Court alone without a jury.
The grounds in all cases must be specifically stated in the complaint, giving factual details, dates, and actual places of occurrence. Lack of proper content is not an affirmative defense; the plaintiff must prove the allegations even if uncontroverted; proof is made according to the general rules of evidence. Failure to state a cause of action will result in a judgment dismissing the complaint. Divorce may commence by means of filing and service of a Summons with Notice on the defendant. Service of the Summons with Notice must be made within 120 days. Such service must be “in hand” personal delivery, all other types of service must be authorized by Court Order to be effective to obtain jurisdiction over the defendant. The defendant must then make an appearance and demand for the complaint by the plaintiff; otherwise the case may be an uncontested default and an application can be made to the court to obtain judgment by default.
Once the case is filed and served the parties must request a Preliminary Conference within ninty days if the case is to be treated as a contested divorce. Such Preliminary Conference will be scheduled if one of the parties files a “Request for Judicial Intervention” (RJI) with required fee. At the Preliminary Conference the court may deal with interim issues, (i.e. temporary custody, child support, attorney fees or spousal support) and will schedule discovery between the parties (Interrogatories, Demands for Inspection of Documents, Examinations before Trial (depositions)) that includes the valuation of assets and pensions to be divided between the parties. There will be at least one Compliance Conference and according to the Court Rules both parties must be in attendance at all matrimonial conferences. At the end of discovery the court will order the Note of Issue to be filed. This signifies that the case is ready for trial and if the parties do not settle all remaining unresolved issues will be resolved by presenting the appropriate testimony to the Court. Preparation for trial can be time consuming as many parties have never appeared before a tribunal and must be prepared so that they know the procedures and pitfalls of testifying and cross examination.
If all the issues are decided between the parties they may agree to submit the papers to the court for approval; this is known as an uncontested divorce; if the case is on the contested calendar and it is settled it may become an uncontested divorce and taken off the calendar at that time, subject to filing by the party seeking divorce. When the defendant is served but does not answer the legal pleadings the plaintiff may seek a default judgment by application to the court. If the divorce is started with a Summons with Notice then the grounds will either have to be proven by a plaintiff’s affidavit or by testimony at an inquest if the divorce is uncontested or to be granted by default. Uncontested divorces are also granted after the defendant appears and waives the right to answer the complaint. In these cases the defendant neither admits nor denies the plaintiff’s allegations, it is up to the plaintiff to prove the allegations by testimony or affidavit in such a case.
For New York State Supreme Court to have jurisdiction over the parties (see DRL § 230) one of the following residency conditions must be satisfied:
- The marriage ceremony was performed in New York and either spouse is a resident of the state at the time of the commencement of the action for divorce and resided in the state for a continuous period of one year immediately before the action began.
- The couple lived as husband and wife in New York and either spouse is a resident of the state at the time of the commencement of the action for divorce and resided in this state for a continuous period of one year immediately before the action began.
- The grounds for divorce occurred in New York and either spouse is a resident of the state at the time of the commencement of the action for divorce and resided in the state for a continuous period of one year immediately before the action began.
- The grounds for divorce occurred in New York and both spouses are New York residents at the time the action is commenced.
- If the parties were married outside of New York and have never lived together as husband and wife in the state and the grounds for divorce did not occur in New York then, one spouse must presently be a resident of New York and have resided continuously in the state for at least two years prior to filing an action for divorce.
Residing “continuously” in the state does not mean that the party can not have left the state during the period of residency nor does it mean that the party does not have another residence elsewhere outside New York.
There are three keys issues when children are involved in a divorce or separation:
- Child Custody - physical custody (where is the child’s main residence) and legal custody (who makes decisions about the child) are the two elements of custody. Custody may be joint (shared by consent between the parties) or it may be sole as determined by agreement or by court order. Before custody is awarded the court usually undertakes various investigative steps to determine what is in the best interests of the child or children. If custody is not decided upon by consent (with the court and a court appointed law guardian representing the child concurring) then a hearing takes place at which both parties present evidence to determine who should have custody in the best interests of the child (or children).
- Child Visitation - the parent who does not have physical custody has either: a) reasonable rights of visitation, b) a specified visitation schedule, or b) is limited to supervised visitation. Only in very rare cases may the non-custodial parent be denied visitation. Usually this is for very specific reasons such as severe substance abuse, history of domestic violence or lack of interest in the child.
- Child Support - In New York the amount of child support paid by the non-custodial parent to the custodial parent is determined by the state Child Support Standards Act. Based on an adjusted gross income formula the payments are 17% for one child and 25% for two children. There are limits that can be reached for individuals with very low income below the poverty level or very high income (statutorily above $80,000 but usually over $150,000) that will allow for deviations from these percentages. The court is also able to award child support for daycare costs if the custodial parent works and educational costs for the child.
Equitable distribution is the law in New York that determines the division of property at the end of a marriage. The court examines thirteen factors in determining the fair division of the property that was accumulated during the marriage and the debts of the parties.
Today alimony is known as “spousal support.” Unlike child support, there is no set formula to calculate spousal support. A grant of spousal support depends on the facts of the case, such as the disparity between the income of the parties, the duration of the marriage, the health of the parties, and the presence of very young children. In New York spousal support is rarely granted on a permanent basis. Generally, it is granted for a set period of time so the other party can get back on their feet after the termination of the marriage. The length of time depends on the facts of the case as the judge sees fit to award.
When one party to a divorce is unable to afford an attorney that party is allowed to request the court to order the spouse with the greater income or assets to pay all or part of the other spouse’s legal fees. These awards can be on a temporary basis at the beginning of the suit or at the end, as the judge sees fit in each case.
Often the wife in a divorce often wants to use her maiden name or a prior name if she has changed her name before marriage and wants to keep that name after divorce. The court routinely grants the right to such a name change in the final divorce decree. In some cases the husband may have changed his name and he may also obtain the right to use a prior surname.
The text on this page is released under the Free Software Foundation GFDL, the “General Free Documentation License.” A local copy of this license can be found here. Some of the text here has been taken from the Wikipedia article New York divorce law. Revised as of January 11, 2004; a list of contributors to this text can be found here.