Divorce Lawyer in Long Island
Grounds for Divorce in New York State
In contemplation of a divorce or in the event that your spouse commences
an action against you, it is important to determine whether there are sufficient grounds. If a divorce is denied, the Court has no authority to equitably distribute the assets of the marital estate. As a result, litigants at times may use grounds as leverage in settlement negotiations. In a contested matrimonial proceeding with a substantial estate, a party may seek to protect his/her assets by contesting the divorce in an attempt to obtain a more favorable settlement.
Frequently, a Court will seek to have the parties resolve the issue of grounds
for the divorce itself, or schedule an expedited grounds trial. If the divorce is denied, it will be unnecessary to expend time and money disclosing financial documentation concerning the valuation of assets of the parties for purposes of equitable distribution. The Court can, however, still make a determination of child support, maintenance, and custody.
Based upon the foregoing, whether you are seeking to commence an action for
divorce or are defending an action for divorce, it is important that you understand the grounds that are recognized in the State of New York. The following is a brief overview of the grounds for divorce in New York State.
(A) Cruel and Inhuman Treatment: 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, making it unsafe or improper to continue to live with the Defendant. The acts demonstrating such treatment must have occurred within five (5) years of the date the summons for divorce is filed with the County Clerk. The allegations of cruel and inhuman treatment should be specific in terms of dates, times, locations. The allegations could be based upon acts of physical abuse or mental cruelty. In a long term marriage, a higher level of proof is required to obtain a divorce. A divorce will not be automatically granted simply because there is a “dead” marriage (i.e, the parties are no longer compatible or if there is a showing of strife or a lack of harmony).
(B) Abandonment: To obtain a divorce on the grounds of abandonment, the
Defendant must abandon the Plaintiff for a period of one (1) year or longer prior to the commencement of the action. There are two (2) forms of abandonment which are “physical” or “actual” abandonment and “constructive abandonment. Actual abandonment consists of a spouse physically departing the marital home without any intention of returning for a period of one (1) year or longer prior to commencement without any good reason and without the other spouse’s consent. Actual abandonment can also occur where one (1) spouse unjustifiably excludes the other from the marital residence without consent. Constructive abandonment involves one (1) spouse’s refusal to engage in sexual relations with the other spouse continuously for a period of one (1) year or longer prior to commencing the action for divorce and continuing to the present, without consent and without good cause or justification, notwithstanding repeated requests by the complaining
spouse to resume such relations.
(C) Imprisonment: The Defendant is imprisoned for a period of at least three (3)
consecutive years. The imprisonment had to start after the date of marriage and the
Defendant must still be in prison at the time of the commencement of the action for
divorce. At the time ofthe completion ofthe Defendant’s third year of imprisonment, there is a five (5) year limit for the Plaintiff to commence the action for divorce on the grounds of imprisonment.
(D) Adultery: An act of sexual or deviate sexual intercourse voluntarily performed
by the Defendant with a person other than his or her spouse during the course of the marriage. Obtaining a divorce on the grounds of adultery may be difficult since this ground requires corroborating testimony from another individual, not solely the testimony of the Plaintiff. In fact, the Defendant’s admission of the adulterous act is insufficient if it is not joined with corroborating testimony. As a result, allegations of adultery are often included in causes of action based on cruel and inhuman treatment.
(E) Living for one (1) year pursuant to a decree of separation: To obtain a divorce
upon this ground, there must be a separation agreement which has been executed by the parties before a notary, and the parties must have satisfied the terms for more than one (1) year. It is important to note that in order to obtain a Judgment of Separation, a spouse must have grounds for a separation, namely cruel and inhuman treatment, adultery or imprisonment. Abandonment is also a ground for separation but need not persist for a minimum of one (1) year to warrant a legal separation as required in an action for divorce. Also, neglect or refusal to support a spouse where there is a legal duty to support is a ground for separation, though not a ground for divorce.
(F) Living for one (1) year pursuant to a separation agreement: To sustain grounds
for divorce based upon this ground, there must be a separation agreement which has been executed by the parties before a notary and filed in the office of the County Clerk for one (1) year. There also must be satisfactory proof submitted by the Plaintiff that both he or she performed all the terms and conditions of such agreement.
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