Starting a Divorce in New York
Many divorces are settled before court papers are ever filed. They can be resolved by both parties working together or with the help of a single neutral mediator (preferably a qualified attorney). Alternatively, the parties’ attorneys negotiate a settlement and reduce it to writing in a comprehensive “property settlement agreement”.
The Initial Stages:
Assuming that pre-filing settlement isn’t possible, the first step in your divorce is to prepare the initial papers. If you are the spouse filing for divorce, that will include a Complaint for Divorce and several other related, obligatory documents.
After being served with a complaint, the defendant spouse in any divorce action has a limited number of days to respond. The response can be by an Answer or an Answer with Counterclaims.
After all initial pleadings have been served and filed, the next step requires automatic financial disclosure. The parties, either separately or working in conjunction with one another, must produce all of their financial documents. You will receive a document checklist outlining each and every item covered by this rule. All of the assets and liabilities should be determined at the time you are filling out your financial disclosures, and copies of the actual statements, accounts and records should be secured in advance.
Grounds for Divorce in New York
In New York, pursuant to DRL 170, a divorce judgment can be obtained based on one of seven different grounds:
- Cruel and inhuman treatment such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper live with the defendant.
Under the cases known as Hessen v. Hessen and Brady v. Brady, the longer the marriage, the harder it is to obtain a divorce under this ground. Differently stated, the longer the marriage, the more serious the conduct complained of needs to be under this particular ground, for a divorce judgment to issue.
- Abandonment by the defendant for one year or more.
Abandonment, in this context, requires proof of four elements:
- voluntary separation of one spouse from the other
- an intent not to resume cohabitation
- lack of consent of the other spouse
- no justification
In cases where no actual abandonment exists, the court may consider granting a divorce on a theory of “constructive” abandonment:
- One spouse locks the other spouse out of the marital home
- The actions of one spouse makes it impossible to live together
- Lack of sexual relations. Diemer v. Diemer
- Confinement of the defendant in prison for a period of three or more consecutive years after the marriage of the plaintiff and the defendant.
- The commission of an act of adultery, … 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.
Adultery means sexual intercourse. Anything less will not be sufficient to sustain a judgment of divorce. Adultery can be proven by direct or circumstantial evidence. However, a spouse’s admission to adultery is not sufficient and a spouse may not testify that his or her spouse committed adultery. CPLR 4502(a).
There are four affirmative defenses to adultery which are listed in DRL 171. These must be raised in the pleadings or they will be deemed waived.
- The plaintiff caused or consented to the adultery.
- The plaintiff has forgiven the defendant.
- More than 5 years has passed since the discovery of the adultery. DRL 210.
- The plaintiff has also committed adultery.
- Living 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.
A judgment of separation is the result of an action for a separation. Known as a conversion divorce, a filing under this ground aims to convert the judgment of separation into a judgment of divorce.
- Living 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.
Also known as a conversion divorce, here the Plaintiff must meet two elements. First, it must be shown that there is a valid separation agreement, and second, that the parties have substantially complied with its terms.
A valid separation agreement must be executed in the form which is required for a deed to be recorded, which means the agreement must be signed and acknowledged by the parties; merely notarizing the agreement is insufficient. In Matisoff, the Court of Appeals held that an unacknowledged marital agreement is unenforceable, despite hearing testimony that both parties signed the agreement.
Living Apart Pursuant to a separation agreement for one year or more is one way to obtain a divorce in New York without either party being at fault.
- The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath.
Since 2007, New York joined the ranks of no-fault divorce states, when the legislature adopted the “irreconcilable break-down of the marriage” ground for divorce. What this means to you is that frankly, to the court it just does not matter why you are seeking a divorce. Fault, that is who did what to whom is not going to be a factor in your divorce unless there is a justifiable reason for it. Such reasons may include, by way of example, certain types of custody disputes, child neglect or abuse allegations, or a spouse’s spending marital assets on an adulterous affair. The former may impact child custody and time-sharing, and the latter may impact the equitable distribution of your financial assets and liabilities.
Thus, for any divorce action filed after October 12, 2010, grounds may be true no fault under this section. It allows a divorce to be granted without a finding that either spouse is at fault. Instead, the party seeking the divorce must simply allege that the marriage has irretrievably broken down for six months or more.
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