Grounds for Divorce in New York

There are three principal players involved in your marriage that will also be involved in your divorce: you, your spouse, and the state. You cannot simply break up, saddle your charger, and ride off into the sunset. Among other legal considerations, you have to give the state an acceptable reason why you should be allowed to break up. The reason is known as the ground for your divorce. Over the years each state has enacted legislation that governs acceptable grounds.

In New York, only the court can dissolve a marriage, either by a divorce or annulment. It also may be altered by a decree of separation, granted by the courts. In any case the case must be brought to the Supreme Court in which case the person seeking the divorce, separation decree or annulment proves "grounds for divorce".

New York only recognizes divorces based upon fault based criteria, though the parties may agree to enter into a separation and have the separation agreement or judgment be the further basis for a divorce after one year. The parties may also agree to an uncontested divorce as long as one of the parties is willing to allege one 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 §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)

One or more of these grounds for divorce must be used if one party to the marriage wants a divorce.

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. In New York none of the following are grounds for divorce:

• Irreconcilable differences
• Incompatibility
• No-fault
• Mutual consent
• No communication

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

There are only two valid ways to dissolve a marriage in New York through separation of agreements. 

• The law requires that you live apart for one or more years under either a written contract of separation or court judgment of separation.  The separation agreement should clearly outline custody, spousal support, distribution of property.  The agreement is filed 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.

• Another form of separation is through a judgment of separation.  Abandonment may be for less than one year and "non-support" is a ground for decree of a judgment of separation.

• One year after filing of the  court's judgment of separation, either party may sue for a "no-fault" divorce after one year of living apart.

In New York annulment may be based on the following grounds:

• If either part is considered disabled;

• If either party is under the age of 18 and wishes to have the marriage annulled;

• If either party becomes incurably insane for more than five years;

• If either party agreed to party under duress or if either party cannot understand the consequences of marriage; or

• If consent to marry was obtained by fraud.

A special proceeding to dissolve a marriage involves if a spouse is absent for five years without being known to be dead or alive, you have made every effort to discover whether they are alive and no evidence is found.  This special proceeding must be brought to the Supreme Court and once it is issued, the reappearance of a spouse does not revive the marriage.

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