Despite the country-wide trend toward no-fault divorce, New York continues to require that the parties seeking a divorce have specific grounds to do so. New York Domestic Relations Law §170 lists the six grounds for divorce. Of the six grounds, four are fault-based. Marital fault means that one of the spouses has done something wrong in the context of the marriage. The four fault-based grounds for divorce are:
- 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 and makes it unsafe or improper for the plaintiff to cohabit with the defendant.
- The abandonment of the plaintiff by the defendant for a period of one or more years.
- The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of the plaintiff and defendant.
- The commission of an act of adultery.
If cruel and inhuman treatment is the ground upon which the divorce action is brought, it may be based upon allegations of either physical or mental cruelty. To be a reason for divorce, the cruel and inhuman treatment must have such a serious effect on the physical or mental health of the divorce-seeking spouse, that it is not safe or proper for the parties to continue to live together. Incompatibility between husband and wife is not a ground for a divorce. Some examples of acts that courts have held to be cruel and inhuman treatment for divorce purposes include: physical attacks upon a spouse; constant screaming, profanity, or other verbal abuse; staying away from the house too often without an explanation; publicly flaunting a relationship with another man or woman, and wrongfully accusing the other spouse of adulterous relations with another man or woman. Intentional refusal by a spouse to have sexual relations may be considered cruel and inhuman treatment where it actually has a physical effect upon the divorce-seeking spouse. Alcoholism or drug addiction, or substance abuse by itself, usually is not a sufficient basis for divorce, unless the spouse becomes violent or abusive when under the influence so that the other spouse fears for his/her health and safety. Mental illness alone is not a sufficient basis for a divorce on the grounds of cruel and inhuman treatment unless a spouse’s other behavior could be defined as cruel and inhuman treatment.
The acts or conduct on which the cruel and inhuman treatment is based must have occurred within five years prior to the commencement of the action to be considered by the court unless it is part of a continuous course of conduct. There are no defenses to cruelty. For example, mental illness, justification, or forgiveness is not a defense.
If the ground for divorce is abandonment, it makes take two different forms, either actual abandonment or constructive abandonment. Abandonment usually means an actual departure of a spouse from the marital residence, without justification and without an intention to return for a period of one year or longer preceding the filing of the action for divorce. A constructive abandonment occurs when one spouse refuses to have sexual relations with the other, without excuse or justification, for a period of one year preceding the filing of the action for divorce.
If the divorce action is brought on the ground of adultery, the divorce-seeking spouse is likely to face a significant evidentiary burden. Plaintiff is not permitted to testify against the defendant, and any allegations of adultery must be corroborated, i.e., there has to be a witness able to testify that the spouse who allegedly committed adultery engaged in sexual relations or sodomy with another person. Often, adultery is proven by circumstantial evidence.
The two non-fault grounds are based upon a separation of, at least, one year, pursuant to a judgment of separation or written separation agreement. Even if the parties separated for a period of one year or longer, in the absence of a judgment or an agreement executed with the required formalities such separation will not be a basis for a divorce. A separation agreement sets forth the respective rights and duties of husband and wife with respect to the custody of children, visitation rights, support payments, distribution of property, and all other matters pertaining to the marital relationship.
Certain formalities must be precisely followed, or the written agreement will not qualify as a ground for divorce. It must be signed and acknowledged. The agreement must be filed with the Clerk of the County where either spouse lives before an action for divorce may be brought. At the end of one year from the date of the agreement, either spouse may sue the other for a conversion divorce, which is considered to be a no-fault divorce.
In an action seeking a conversion divorce, the plaintiff must establish that the separation agreement was properly signed and acknowledged, and was properly filed; that the spouses lived apart during the period of the agreement up to the time of the divorce action; and that the plaintiff substantially complied with the terms of the separation agreement.