Divorce in New York: fault, no-fault, and legal grounds

Divorce in New York: fault, no-fault, and legal grounds

| Dec 16, 2020 | Divorce & Child Custody |

In the state of New York, couples wishing to dissolve a marriage can choose “no-fault divorce.” State law has not always included no-fault divorce, however. Up until 2010, parties wishing to divorce would need to assign fault to one spouse or the other in order to complete a divorce.

Fault divorce

Parties to a divorce still have the choice of fault divorce to dissolve a marriage. Fault divorces under New York law can be based on:

  • the cruel and inhuman treatment of the plaintiff by the defendant (conduct by the defendant must so endanger the physical or mental well being of the plaintiff that it is unsafe or improper for the plaintiff to live with the defendant);
  • the abandonment of the plaintiff by the defendant for a period of one or more years;
  • the confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant; or
  • an act of adultery.

Defenses

There are certain defenses a defendant has in a fault divorce action. If adultery is the only ground for divorce the plaintiff has, he or she is not entitled to a divorce if:

  • the offense was committed by the procurement or with the connivance (knowledge and allowance of) the plaintiff;
  • the offense has been forgiven by the plaintiff;
  • the offense occurred more than 5 years prior to the commencement of the divorce action;
  • the plaintiff has also been guilty of adultery where the defendant would have been entitled to a divorce.

Residency

There are also residency requirements to obtain a divorce order. The couple must have been married in New York or have resided in the state as husband and wife and either party must have been a resident of New York for at least one year before commencing suit.

Consulting with an experienced family law attorney can help couples dissolve a marriage in the most efficient and timely way possible. Couples who want to dissolve a marriage as quickly as possible with an outcome acceptable to both parties should talk to a family law attorney to understand the law surrounding divorce in the state of New York.