Grounds for Divorce

Grounds for divorce are essentially the cause or reason for your divorce. Unless an acceptable ground is either conceded by the other party or decided by the Supreme Court, the Court will ultimately have to deny the application.

A case where one party “contests” the grounds most often result from a purely financial motives (vesting of a pension, sale of a joint venture etc) and is much more of a strategic tool than anything else.

When suing for divorce in the Supreme Court of the State of New York you must list one of the following seven (7) reasons as the “Grounds for Divorce.”

Conduct that generally makes it unsafe, either physically or mentally, for the two people to continue to live together is regarded as Cruel and Inhuman Treatment.

Two things to remember: in evaluating the nature of the treatment the Court considers the length of the marriage and typically there is a higher standard when the parties have been married for a greater amount of time. Second, the Court has a FIVE year (5) statute of limitations on the specific act complained of.

One party can be found to have actually “abandoned” his/her spouse or constructively abandoned their spouse.

To be found to have abandoned your spouse you must satisfy these four (4) elements:

• One party voluntarily separates from the other
• The is no justification for the leaving
• It is done without the other party’s permission
• There are no plans to reconcile or resume cohabitation

Courts generally determine this ground in these three (3) circumstances:

• A spouse is locked out of the marital home
• Actions of the remaining spouse make it impossible to continue living together
• The lack of sexual relations generally for a period of one year

To use Imprisonment as a Ground for divorce it had to have occurred after the marriage and for a period of three (3) consecutive years or more. It must be actual imprisonment as opposed to sentencing.

The Court generally defines adultery as sexual intercourse voluntarily entered into with someone other than your spouse after your marriage. The standard is intercourse and absent that act the Court will not find on this ground. One must be able to prove the occurrence by either direct or circumstantial evidence but the admission of the adulterer or testimony of the offended spouse is not admissible to substantiate the charge.

The Court recognizes four defenses of Adultery invalidating the ground:

1. The Spouse caused and or permitted the adultery
2. Spouse is also guilty of adultery
3. The spouse has forgiven the adulterer
4. More than FIVE (5) years have passed since the act

When the Court has issued a separation agreement which the two parties substantially comply with for a period of one (1) year the agreement will become the Final Judgment of Divorce.(Commonly known as a Conversion Divorce)

An agreed to written expression of the terms of the separation of the parties which has been substantially complied with for a consecutive period of (one) 1 year is also a conversion divorce. This agreement must be filed in the County in which either party resides and is unenforceable if it is not properly recorded.

As of October 12th, 2010 under this new standard an accepted ground is if one party states under oath that the relationship has irretrievably broken down for a period of at least six months. No other fault is required.

It is important to remember that the divorce will not be granted unless the remaining ancillary issues (child support, maintenance, equitable distribution etc.) are decided.

To further discuss your individual case please contact our office for a free consultation.