Divorce

GROUNDS FOR DIVORCE: In New York, you cannot obtain a divorce simply because you do not get along with your spouse (sometimes called “irreconcilable differences”) or because you have arguments. In order to file for a divorce in New York State you must have a ground (a legally acceptable reason) for the granting of a divorce by the New York courts. The legally acceptable reasons, or grounds for divorce, are:

  • CRUEL AND INHUMAN TREATMENT: Cruel and Inhuman treatment generally involves either physical or mental cruelty. To be a ground for divorce, the treatment of the Plaintiff by the Defendant must rise to the level that the physical or mental well being of the Plaintiff is endangered and makes it unsafe or improper for the Plaintiff to continue the marriage. Mere incompatibility between husband and wife is not a ground for divorce in the State of New York. Some examples of acts that courts have held to constitute cruel and inhuman treatment for divorce purposes include physical attacks upon a spouse, constant screaming and profanity or other verbal abuse, gambling away the household funds, staying away from the house to often without an explanation, going out with another man or woman, and wrongfully accusing the other spouse of adulteress relations with another man or woman. (Alcoholism by itself is usually not a sufficient basis for divorce unless your spouse becomes cruel or violent when intoxicated so that you fear for your health and safety). Each case stands on its own facts.
  • ABANDONMENT: Abandonment means that your spouse has intentionally left you without your consent, of his or her own accord for a period of one year or more, without justification and without a good reason for leaving, such as your ill treatment or your consent. In addition, your spouse must have left with the intention of never returning.Constructive Abandonment is an unjustified refusal by a spouse to have sexual relations for a full year, which qualifies as a ground for divorce in New York and may also be considered cruel and inhuman treatment.
  • ADULTERY: Bringing an action upon the grounds of adultery, especially if your spouse is going to contest the divorce, is not a simple matter. The proof is difficult. You are not permitted to testify against your spouse and you must have a witness ready to convince the court that your spouse 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 another person. It is frequently necessary to retain the services of a Private Investigator to obtain the specific circumstantial evidence needed for trial.
  • IMPRISONMENT FOR THREE CONSECUTIVE YEARS: Divorce on the grounds of imprisonment for three or more years means that the defendant spouse actually must have physically served three or more consecutive years in prison before an action can be brought for divorce on this ground. This applies even if the conviction is later overturned or reversed on appeal. Anything less will be insufficient.
  • LIVING SEPARATE AND APART PURSUANT TO A SEPARATION AGREEMENT: A Separation Agreement is a privately drafted agreement between the spouses that sets forth the terms and conditions by which the parties will live apart. The agreement must be signed by the parties before a notary and filed with the County Clerk in the county where one of the parties resides. If you and your spouse have lived apart for more than one year according to the terms and conditions of a properly executed separation agreement, you may begin an action for divorce.
  • LEGAL SEPARATION: An action may be maintained by a husband or wife against the other party to the marriage to procure a judgment separating the parties from bed and board, forever, or for a limited time, for any of the following causes: Cruel and inhuman treatment; Abandonment of the plaintiff by the defendant; The neglect or refusal of the defendant-spouse to provide for the support of the plaintiff-spouse where the defendant-spouse is chargeable with such support; The commission of an act of adultery by the defendant; The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.
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