ARTICLE 10: Action for Divorce
(provided by Divorce Source, Inc.)
Published 6.5.98
New York Domestic Relations Law Contents
Section 170. Action for divorce.
Section 170-a. Special action.
Section 171. When divorce denied, although adultery proved.
Section 172. Co-respondent as party.
Section 173. Jury trial.
Section 175. Legitimacy of children.
Sec 170. Action for divorce. An action for divorce may be maintained by a
husband or wife to procure a judgment divorcing the parties and dissolving
the marriage on any of the following grounds:
(1) The cruel and inhuman treatment of the plaintiff by the defendant
such that the conduct of the defendant so endangers the physical or mental
well being of the plaintiff as renders it unsafe or improper for the
plaintiff to cohabit with the defendant.
Sec. 170-a. Special action. a. A spouse against whom a
decree of divorce has been obtained under the provisions of
subdivision five or six of section one hundred seventy of this
chapter, where the decree, judgment or agreement of separation
was obtained or entered into prior to January twenty-first,
nineteen hundred seventy, may institute an action in which there
shall be recoverable, in addition to any rights under this or any
other provisions of law, an amount equivalent to the value of any
economic and property rights of which the spouse was deprived by
virtue of such decree, except where the grounds for the
separation judgment would have excluded recovery of economic and
property rights.
(2) The abandonment of the plaintiff by the defendant for a period of
one or more years.
(3) The confinement of the defendant in prison for a period of three or
more consecutive years after the marriage of plaintiff and defendant.
(4) The commission of an act of adultery, provided that adultery for the
purposes of articles ten, eleven, and eleven-A of this chapter, is hereby
defined as the commission of an act of sexual or deviate sexual
intercourse, voluntarily performed by the defendant, with a person other
than the plaintiff after the marriage of plaintiff and defendant. Deviate
sexual intercourse includes, but not limited to, sexual conduct as defined
in subdivision two of Section 130.00 and subdivision three of Section
130.20 of the penal law.
(5) The husband and wife have lived apart pursuant to a decree or
judgment of separation for a period of one or more years after the granting
of such decree or judgment, and satisfactory proof has been submitted by
the plaintiff that he or she has substantially performed all the terms and
conditions of such decree or judgment.
(6) The husband and wife have lived separate and apart pursuant to a
written agreement of separation, subscribed by the parties thereto and
acknowledged or proved in the form required to entitle a deed to be
recorded, for a period of one or more years after the execution of such
agreement and satisfactory proof has been submitted by the plaintiff that
he or she has substantially performed all the terms and conditions of such
agreement. Such agreement shall be filed in the office of the clerk of the
county wherein either party resides. In lieu of filing such agreement,
either party to such agreement may file a memorandum of such agreement,
which memorandum shall be similarly subscribed and acknowledged or proved
as was the agreement of separation and shall contain the following
information: (a) the names and addresses of each of the parties, (b) the
date of marriage of the parties, (c) the date of the agreement of
separation and (d) the date of this subscription and acknowledgment or
proof of such agreement of separation.
b. In determining the value of the economic and property
rights described in subdivision a hereof, the plaintiff`s
interest shall be calculated as though the defendant died
intestate and as if the death of the defendant had immediately
antedated the divorce.
c. If the defendant shall establish that intervening
circumstances have rendered an award described in subdivision a
hereof inequitable, the court may award to the plaintiff such
portion of such economic and property rights as justice may
require.
d. If the defendant shall establish that the plaintiff has
expressly or impliedly waived all or some portion of the
aforesaid economic or property rights, the court shall deny
recovery of all such rights, or deny recovery of the portion of
such rights as justice may require.
e. Actions under this subdivision may be brought:
(i) Within two years of the enactment of this section, or
Sec. 171. When divorce denied, although adultery proved. In
either of the following cases, the plaintiff is not entitled to a
divorce, although the adultery is established:
(ii) Within two years of the obtainment of the subject
divorce, whichever is later.
1. Where the offense was committed by the procurement
or with the connivance of the plaintiff.
Sec. 172. Co-respondent as party.
2. Where the offense charged has been forgiven by the
plaintiff. The forgiveness may be proven, either affirmatively,
or by the voluntary cohabitation of the parties with the
knowledge of the fact.
3. Where there has been no express forgiveness, and no
voluntary cohabitation of the parties, but the action was not
commenced within five years after the discovery by the plaintiff
of the offense charged.
4. Where the plaintiff has also been guilty of adultery
under such circumstances that the defendant would have been
entitled, if innocent, to a divorce.
1. In an action brought
to obtain a divorce on the ground of adultery the plaintiff or
defendant may serve a copy of his pleading on a co-respondent
named therein. At any time within twenty days after such
service, the co-respondent may appear to defend such action so
far as the issues affect him. If no such service be made, then
at any time before the entry of judgment a co-respondent named in
any of the pleadings may make a written demand on any party for a
copy of a summons and a pleading served by such party, which must
be served within ten days thereafter, and he may appear to defend
such action so far as the issues affect him.
2. In an action for divorce where a co-respondent has
appeared and defended, in case no one of the allegations of
adultery controverted by such co-respondent shall be proven, such
co-respondent shall be entitled to a bill of costs against the
person naming him as such co-respondent, which bill of costs
shall consist only of the sum now allowed by law as a trial fee,
and disbursements.
Sec. 173. Jury trial. In an action for divorce there is a
right to trial by jury of the issues of the grounds for granting
the divorce.
Sec. 175. Legitimacy of children.
1. Where the action for
divorce is brought by the wife, the legitimacy of any child of
the parties, born or begotten before the commencement of the
action, is not affected by the judgment dissolving the marriage.
2. Where the action for divorce is brought by the husband,
the legitimacy of a child born or begotten before the commission
of the offense charged is not affected by a judgment dissolving
the marriage; but the legitimacy of any other child of the wife
may be determined as one of the issues in the action. In the
absence of proof to the contrary, the legitimacy of all the
children begotten before the commencement of the action must be
presumed.
Copyright© 1996. All rights reserved by Divorce Source, Inc.