A Brief History Of The Grounds For Divorce In New York And Recent Court Decisions Regarding No Fault Divorce

Until October, 2010, the causes of action for divorce in New York were limited to grounds based on "fault", which included:

Cruel and inhuman treatment (DRL §170.1)
Abandonment for a continuous period of one year or more (DRL §170.2)
Imprisonment for more than three years subsequent to the date of 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)

Until the advent of no-fault divorce in 2010, the most common basis for divorce was abandonment (DRL § 170.2). The ground of abandonment included either "actual abandonment" (defendant left the marital residence) or "constructive abandonment" (defendant refused to have sexual relations with the plaintiff.

The ground of cruel treatment (DRL § 170.1) was (and it continues to be) used primarily in contested cases. Typically, a plaintiff seeking a divorce on the ground of cruel and inhuman treatment must prove at least three instances of cruelty, which can include both verbal and physical abuse. The "amount" of cruelty that a plaintiff must establish to obtain a divorce on the ground of cruel and inhuman treatment depends, in part, on the length of the marriage. Simply stated, a plaintiff seeking to end a long-term marriage on the ground of cruel treatment will need to show more severe and pervasive cruelty than would be required for a brief marriage. To a certain extent, with the advent of no fault divorce in New York in October, 2010, the issues relating to cruelty (as well as those relating to other fault-based divorce grounds) have been rendered moot.

Since 2010, a new ground has been added, effectively permitting no-fault divorce in New York state. The new, no-fault ground for NY divorce is set forth in the NY Domestic Relations Law as follows:

The relationship between husband and wife has broken down irretrievably for a period of at least six months (DRL §170.7)

The fact that a divorce is filed under the no fault statute does not necessarily signify that the proceeding is uncontested. The parties may still be contesting (oftentimes quite bitterly) financial issues (equitable distribution of property; maintenance; etc.), as well as issues pertaining to children (custody, visitation and child support). The no fault statute states that no divorce judgment may be entered unless all financial and custodial issues have been resolved.

The advent of no fault divorce in New York does not alter the fact that New York has the most complex divorce laws and procedures in the United States. The definition of "marital property" is defined more broadly by New York courts than anywhere else. Certainly, the advent of no fault in New York was widely welcomed by divorce lawyers and most litigants, because it eliminated the possibility of a spouse using "grounds" as inappropriate leverage to extract unjustified financial advantage against the other party. Grounds trials were not common. With no fault, they will be less common.

However, there are still instances in which one of the spouses tries to stop the divorce by arguing that the statutory requirements (minimal as they are) have not been met. A recent decision by Justice Wood of the Supreme Court, Dutchess County, in the case Schiffer v. Schiffer, 930 N.Y.S.2d 827 (Supr. Crt., Suffolk Cty. 2011), suggest that even with the new statute, there are still instances in which grounds trials are necessary. In Schiffer, the defendant-wife opposed the divorce, arguing that contrary to the plaintiff-husband's allegations, the marriage was not irretrievably broken. The court ruled that a trial on the issue of grounds would be necessary, stating:

An assertion by a party that the marital relationship has been irretrievably broken for six months is subject to the same scrutiny and burden of proof as assertions made under other sections of the statute. Domestic Relations Law § 170(7) is clear, and it is consistent with the overall framework of the entire statute. There is no reason to treat it any differently than the rest of Domestic Relations Law § 170 for purposes of this summary judgment motion. The legislature has granted matrimonial litigants the option of asserting the no-fault ground-it has not removed a defendant's basic right to contest grounds, which exists for all other similarly worded sections.

Because of the complexity of New York divorce law, and the important legal and financial issues at stake in any divorce, it is essential for you to retain an experienced New York divorce lawyer if you are facing the prospect of divorce or legal separation. Rapaport Law Firm has represented New York residents in divorce and family law matters since 1995. Rapaport Law Firm has offices in New York City's Empire State Building, and provides legal representation in all counties of New York and New Jersey.