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Divorce Grounds in New York

The following is a brief overview of the grounds for divorce in the State of New York. It is not intended to be a thorough analysis of the individual grounds and the interpretation given each ground by the various courts.

There are six grounds for divorce in New York. In order to prevail in an action for divorce, certain elements must be proved. Failure to prove the elements required for a divorce results in the action being dismissed.

The six grounds are as follows:

1. The cruel and inhuman treatment of 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.

There is no precise definition of the type on conduct that warrants a court in granting a divorce based on cruel and inhuman treatment. Each case is decided on its own facts. Verbal abuse, as well as physical abuse, can constitute cruelty provided the conduct is such that it renders it unsafe or improper for the parties to cohabit. In the case of Brady v. Brady, 64 NY2d 339 (1985), the Court of Appeals said that in a marriage of long duration a high degree of proof is needed to dissolve a marriage on the grounds of cruel and inhuman treatment.

2. The abandonment of the plaintiff by the defendant for a period of one or more years.

Actual abandonment consists of the unjustified leaving of the marital home by one of the parties. If one of the parties leaves the marital home with the consent of the other party, there is no abandonment. Another form of abandonment is constructive abandonment, which is the unjustified refusal to engage in sexual relations with the other party. Again, if both parties consent to not engage in sexual relations, there is no constructive abandonment by either party. At the time of the commencement of the action, the abandonment must be one full year.

3. The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.

At the time that a party commences a divorce action on this ground, the defendant must have been confined in prison for three consecutive years. Being sentenced to more than three years in prison does not give rise to a cause of action. The cause of action does not arise until three years of confinement has elapsed.

4. The commission of an act of adultery, provided that adultery for the purposes of articles 10, 11 and 11-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 2 of Section 130.00 and subdivision 3 of Section 130.20 of the penal law.

Adultery has been a ground for divorce since legislative divorce was enacted in 1787. Until the Divorce Reform Law in 1966, effective in 1967, it was the sole ground for divorce.

Adultery can be proved by direct evidence or circumstantial evidence. Adultery cannot be proved by the confession of the party alone. Also, a spouse cannot prove adultery by his/her direct testimony, since Section 4502 of the Civil Practice Law and Rules provides that a spouse is incompetent to testify against the other spouse in a divorce founded upon adultery.

Section 171 of the Domestic Relations Law provides for 4 affirmative defenses to a divorce action based on adultery. An affirmative defense is one that must be pleaded. If proved, an affirmative defense results in the dismissal of the divorce action. The 4 affirmative defenses are:

  • Procurement or connivance. Procurement is the encouragement of adultery. Connivance is the consent to the adultery.
  • Forgiveness. A resumption of sexual relations after discovery of the adultery results in forgiveness (condonation).
  • Statute of limitations. A divorce action founded on adultery must be brought within 5 years of the discovery of the adultery.
  • Recrimination. This defense means that if the plaintiff is also guilty of adultery, he/she will not be granted a divorce.

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.

This ground for divorce is known as a "conversion divorce". If, after a judgment of separation has been granted, the parties live separate and apart for one or more years, either party may commence a divorce action based on the judgment of separation. The party commencing the action must allege and prove that he/she has substantially performed all of the terms and conditions of the judgment. Section 200 of the Domestic Relations Law sets forth the grounds for a judicial separation.

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 of 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 the subscription and acknowledgment or proof of such agreement of separation.

This ground for divorce is also known as a "conversion" divorce. If, after the execution of a separation agreement, the parties live separate and apart for one or more years, either party may commence an action for divorce based upon the separation agreement. The party commencing the divorce action must allege and prove that he/she has substantially performed all of the terms and conditions of the agreement. This ground is also referred to as a "no fault" ground since the divorce is not based on fault but the living separate and apart for one or more years. However, the execution of a separation agreement is a voluntary act of the parties, i.e., one cannot be forced to sign a separation agreement. Of course, even after the execution of a separation agreement is a voluntary act of the parties, i.e., one cannot be forced to sign a separation agreement.

Section 173 of the Domestic Relations Law provides for the right to trial by jury of the issues of the grounds for divorce. Other aspects of a divorce, i.e., custody, support and equitable distribution are tried by a judge.


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New York does not automatically give custody of children to any one parent. In deciding custody, the court only considers what is in the best interest of the child. It considers who gave primary care during the marriage, scheduled doctors' appointments, and attended school meetings. Generally, the court allows the non-custodial parent ample visitation with the child and even awards joint custody. Visitation is often only limited in circumstances where there is abuse.
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