Grounds
for Divorce in New York
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)
-
Irretrievable breakdown of the marriage for six (6) 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 "ancillary relief" (see
below) that are requested by one or both of the parties. All
divorces, even by uncontested consent, must be a based on one of the six
grounds stated above.
New York now has a
no-fault ground for divorce---
-
Irretrievable breakdown of the marriage (DRL §170.7)
Irretrievable Breakdown of
the marriage
New York's no-fault ground for divorce. Allegations under this
ground do not have to include allegations of domestic violence
and repeated, extreme mental cruelty. A claim of irretrievable breakdown
does not involve any wrong doing by either spouse but is a statement
about the condition of the marriage. You will not need to prove that
your spouse was to blame for the failure of your marriage to get a
no-fault divorce based on irretrievable breakdown. A court may grant you
a divorce if it finds that you and your spouse can no longer live
together due to the irretrievable breakdown of your marriage for six (6)
months.
Irretrievable Breakdown
Factors
Factors considered in determining a marriage breakdown or irretrievable
breakdown may include the following:
-
Conflict of personality
-
Whether there is mutual concern for the emotional needs of each
other
-
Whether the marriage is characterized by financial difficulties
-
Long
physical separation
-
Difference of interests
-
Resentment
-
Distrust
-
Constant bickering
-
Irreversible antagonistic feelings
Cruel and inhuman treatment
Cruel and inhuman treatment must be behavior by the defendant that
rises to the level such that it makes it improper 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. Adulerous affairs can also be ground for a
divorce based upon cruel and inhuman treatment. In New York, the longer
the duration of the marriage the more severe the level of cruelty must
be in order to establish grounds under cruel and inhuman treatment.
Conversely, the shorter the duration of the marriage, the easier it is
to prove cruel and inhuman treatment.
Abandonment
Abandonment may be actual 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. Constructive
abandonment is the refusal of one spouse to engage in sexual relations
with the other spouse, without that persons consent.
Adultery
Adultery is difficult to prove as it requires either corroborating
evidence from a third party or recorded proof of such activity. Thus a
statement by the defendant that he or she had sexual relations with a
third party is not legally admissible to permit the court to grant a
divorce to the plaintiff. However, this would be evidence of cruel and
inhuman treatment on the part of the spouse making the statement to the
other spouse. Whether or not the statement is true.
Procedure
Contested Divorce
The grounds for divorce may be decided by a jury or by a judge, all
other ancillary relief is considered
equitable in nature and must be
decided by the judge alone.
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. The defendant must then make an appearance and
demand for the complaint by the plaintiff, or is at risk of having the
plaintiff granted the divorce by default.
Once the case is filed and served the parties must request a
Preliminary Conference within ninety 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 that
includes the valuation of assets and pensions to be divided between the
parties.
Uncontested divorce
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. 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 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.
Residency requirements
For
New York State Supreme Courtto
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.
Ancillary Issues
Children
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) 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 c) 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; 25% for two children, 29% for
three children; 31% for four children; and 33% for more than four
children. There are limits that can be reached for individuals with
very low income below the poverty level or very high income
(statutorily above $130,000 but usually over $350,000) that will
allow for deviations from these percentages. Over and above monthly
or weekly child support, the court is also able to award a child
support "add-on" for daycare costs if the custodial parent works,
educational costs for the child (usually limited to college, not
private or religious elementary or high school), and medical
expenses, including the cost of medical insurance.
Property
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. The courts have routinely held that equal
distribution is the norm except in cases of egregious misconduct, or
when dealing with businesses, professional licenses, and college &
advanced degrees.
Spousal Support
Today
alimony is known as "maintenance"
or "spousal support." Now maintenance, like child support, has a 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, for a total of twenty factors
to be considered by the Court. In New York spousal support can be
granted on a permanent basis, for instance in cases of physical or
mental disability or when the parties are elderly (about 60 years old or
older) or for a marriage of long duration. Generally, however, 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 based
upon twenty (20) factors listed in the statute.
Legal Fees
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. Now legal fees
are presumed to be payable by the monied spouse to the non monied
spouse. The burdon is now on the non monied spouse to disprove the
presumption of payment of legal fees.
Expert Fees
When one party to a divorce is unable to afford an expert 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 expert
fees. These awards can be at the beginning of the suit or at the end, as
the judge sees fit in each case. Now expert fees are presumed to be
payable by the monied spouse to the non monied spouse. The burdon is
now on the non monied spouse to disprove the presumption of payment
of expert fees
Name Change
The wife in a divorce often wants to use her maiden name or a prior
name if she has changed her name before the marriage sought to be
dissolved and wants to keep that name after divorce. The court routinely
grants the right to such a
name change in the final divorce
decree.
Preparing to Meet with Your Divorce Attorney
Preparing for your first meeting with this Office, you should prepare
certain documents and information to bring with you. The information you
provide will help us assess your situation and develop the best plan
that will optimize your objectives.
This list
is an example. Not all documents listed may apply to you. You may need
more documents and/or information; or less. Financial Information
(including account names, numbers, balances and current statements) for
the last year unless indicated otherwise. Individual income tax returns
for the past three to five years (state and federal). Business income
tax returns for the past three to five years (state and federal). Recent
income stub. Bank statements. Statements from trusts, stocks, bonds or
US Treasury notes. List of safety deposit box contents and photos of the
contents of the box. Investment accounts (annuities, mutual funds) for
the last year. Retirement Savings Information (including balances,
beneficiaries, outstanding loans and current statements) for the last
year. 401(k)s. 403(b)s. IRAs. Life insurance policies (including cash
value). Social Security statement. Pension statement. Property
Information (including property description, address, ownership
interest, market value, outstanding mortgage and loan balances, source
of mortgage and loan payments and most recent tax assessment). Primary
residence . Rental properties (including any rental income). Vacation
homes. Business property--- including any corporate books or kits.
Personal property of value (antiques, collectibles, automobiles,
jewelry, art, computers, electronics, clothing, furs, etc.) photos.
Inheritance (current or anticipated). Interests in trust (current or
future). List of property owned by each spouse prior to marriage.
Automobile(s), boat(s) or other recreational vehicle(s) and photos.
Bills and Outstanding Debt (including balances, statements, source of
payments/funds) for the last year, unless otherwise noted. Credit card
statements. Loan documents. Utility bill. Other bills (school tuition,
medical bills, etc.). Monthly budget worksheet. Legal Documents. Last
Will and Testament. Health Care Proxy. Living wills. Powers of attorney.
Durable powers of attorney. Advance directives (also termed power of
attorney for health care, healthcare proxy). Prenuptial agreements (also
termed premarital agreement, antenuptial agreement).Divorce decrees or
child support from a previous marriage. Non-financial Contributions.
Contributions of a homemaker. Contributions made by one spouse to
further the educational and/or career goals of the other spouse.
Finally, you will also want to start thinking about other issues that
may or may not be applicable to your situation. These are matters about
which you should speak with your attorney and may include: Child
support, Child custody (joint, sole, legal, residential), Visitation,
Remaining in the marital home, Beneficiaries of insurance policies and
other benefits, Spousal support / alimony / maintenance, Domestic
violence issues (including spousal and child abuse), Parental Alienation
Syndrome, Post-divorce support, Court Costs, Litigation Fees and
Expenses, Attorney’s fees.
Give us a call, you will
be glad you did.
MEDIATION
AND ARBITRATION ALTERNATIVES
Both mediation and
arbitration are ways to voluntarily can resolve any differences between
you and your spouse without going to court. Mediation and arbitration
are very different ways of resolving differences.
A mediator has no power to
impose a decision on the husband and the wife. He or she is there solely
to help the husband and wife find a resolution that both of them will
find acceptable. If they cannot agree, that's as far as the mediator can
go.
An arbitrator, on the
other hand, has the power to impose a settlement. The arbitrator listens
to the arguments in favor of the husband and the arguments in favor of
the wife, and then renders a ruling. Typically, the husband and the wife
will agree in writing to submit to arbitration before the process
begins. They will agree in advance to be bound by the arbitrator's
decision, whatever it is.
