Divorce and Seperation

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Divorce and Separation

The unprecedented increase in the marriage failure rate during this century and the latter part of last century has had its effect, directly or indirectly, on virtually every family in the country. The following information is designed to briefly summarize New York State’s divorce laws.

Marriage is a civil contract. In accordance with the “Marriage Equality Act” signed into law in 2011(Domestic Relations Law (DRL) § 10-a). New York recognizes valid same-gender as well as opposite-gender couples. The state has an interest in preserving marriages. Accordingly, the marriage relationship only can be dissolved by a court, by either a divorce or an annulment. It also may be altered by a decree of separation granted by our courts. In any case, there must be a proceeding in the Supreme Court (which contrary to conventional thinking is not the highest court in New York State, but rather the trial court of general jurisdiction) in which the person seeking the divorce, separation decree or annulment must prove a basis for the divorce.

Pursuant to legislation signed into law by the Governor of New York State in 2010, New York will now grant a divorce when there has been an irretrievable breakdown of the marriage, for six (6) months or longer joining the rest of the country in instituting “no-fault” divorce (Domestic Relations Law (DRL) § 170(7)).

New York continues to have what is called a conversion divorce mechanism whereby parties can obtain a divorce pursuant to a separation decree or a separation agreement for more than a year and the party seeking the divorce has substantially complied with the terms of the separation decree or the separation agreement. Additionally, other fault grounds exist as noted below.

In order to get a judgment of separation, pursuant to DRL § 200, a party must prove cruel and inhuman treatment, abandonment, non-support, adultery or imprisonment.

What are the grounds for divorce?

Four of the “grounds” in this state are based on the fault of one of the parties:

(1) cruel and inhuman treatment;

(2) abandonment for one or more years;

(3) imprisonment for three or more years; and

(4) adultery.

The other (“no fault”) grounds are:

(1) one year of living apart under a separation agreement;

(2) one year of living apart under a separation decree granted by a court;

(3) an irretrievable breakdown of the marriage for a period of at least six months, provided that one spouse has so stated under oath. These “no fault” grounds afford New Yorkers a basis to get a “no-fault” divorce, in which neither spouse is judged to be at fault. Unquestionably, the “no fault” laws will provide a disincentive for people who wish to challenge the basis for the divorce.

New York’s “No Fault” Ground: What is “irretrievable breakdown of the marriage”?

An irretrievable breakdown of the marriage allows one spouse, unilaterally, to end a marriage and to do so without the agreement of the other spouse. However, the 2010 law provides that a court cannot grant a judgment of divorce unless and until the economic issues of the marriage are dealt with.

To prove the ground of irretrievable breakdown of the marriage the party seeking the divorce must demonstrate that: (1) the relationship between husband and wife has broken down irretrievably; (2) for a period of at least six months; (3) provided that one spouse states this under oath; and (4) proves that the “economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts’ fees and expenses as well as the custody and visitation with the minor children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce.”(DRL § 170(7)).

What is “cruel and inhuman treatment”?

Cruel and inhuman treatment can involve either physical or mental cruelty. To be a reason for divorce, the 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 the marriage.

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; gambling away the household funds; staying away from the house too often without an explanation; going out with another man or woman; and wrongfully accusing the other spouse of adulterous relations with another man or woman. Alcoholism, by itself, usually is not a sufficient basis for divorce, unless your spouse becomes cruel or violent when intoxicated, so that you fear for your health and safety.

Mental illness also 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.” However, mental illness is not a defense to cruel and inhuman treatment. Nevertheless, a court may declare a marriage void when a spouse has been incurably mentally ill for a period of five (5) years or more.

The courts have held that when there is long-term marriage (often fifteen or more years married) the acts of cruelty must be more substantial to justify a divorce. What might be cruel in a short marriage may not be sufficient basis for divorce in a more mature marriage relationship.

Each case, however, stands on its own facts. The court decides whether or not these facts justify a dissolution of the marriage. Generally, the acts or conduct on which the divorce is based must have occurred within five years prior to the commencement of the action to be considered by the court.

What does “abandonment for one or more years” mean?

Abandonment means that your spouse has intentionally left you without your consent, and of his or her own accord (that is, you did not force or lock your spouse out of the house) and without justification.

You must also prove that your spouse had no good reason for leaving (such as your ill treatment or your consent), that your spouse left with the intention of never returning, and that your spouse did not offer in good faith to return.

Unjustified refusal by a spouse to have sexual relations is also considered a “constructive abandonment” and may also be considered cruel and inhuman treatment.

Abandonment must exist for a continuous period of at least one year before the action is started to be a basis for divorce in this state. There is no statute of limitations on abandonment, but it will depend on specific facts such as health issues, livelihood, compelling family obligations or other reasons.

However, a separation agreement eliminates the ground of abandonment, since when both parties sign an agreement, they consent to living apart.

What is the basis of divorce if a spouse has been in “imprisonment for three or more years”?

Divorce on the grounds of imprisonment for three or more years means that the defendant actually must have served three years or more in prison before an action can be brought; even if the conviction is later overturned or reversed.

What is adultery?

Bringing an action on the ground of adultery, especially if your spouse is going to contest it, is not a simple matter. The proof of adultery here is difficult. Generally, you are not permitted to testify against your spouse, and you must have a witness ready to convince the court that your mate did engage in sexual relations with another person. Adultery is usually proven by circumstantial evidence, that is, by showing that your spouse had the opportunity, inclination and intent to engage in sexual relations with the other person.

In addition, there are four defenses to the charge of adultery, and if any of these are proven, the court will deny the divorce:

(1) “Procurement” or “connivance” - Procurement means that one spouse actively encouraged the other to commit adultery. Connivance is similar to “collusion” or “consent” by a spouse to the adultery.

(2)“Condonation” or “forgiveness” - Having sexual relations with your spouse after discovery of his or her adultery is an absolute defense to your divorce action based on the adultery.

(3)“Statute of Limitations” - This means that there is a time limit (five years from your discovery of the first unforgiven act of adultery) for you to bring the divorce action.

(4) “Recrimination” - This defense means that you, too, were guilty of adultery. No matter how convinced the court is that adultery was committed by both parties, it is forbidden from granting a divorce on grounds of adultery. Thus, if each spouse proves the adultery of the other, neither can obtain a divorce against the other on that ground.

What about living apart and separations?

Living apart, without a formal written agreement of separation or a court judgment of separation, is not recognized as a ground for a New York State divorce, no matter how long you continue to live separately.

Regarding separations, there are only two valid ways to dissolve a marriage. Each requires separation of one or more years. The law requires that you and your spouse live apart either under a written contract of separation or under a court judgment of separation and the spouse seeking the divorce must have substantially complied with the terms of the agreement or judgment.

What is a separation agreement?

A separation agreement is a detailed contract which should be prepared by attorneys, where the parties agree to live separate for the rest of their lives. It should set forth the respective rights and duties of husband and wife with respect to the custody and access to children, support payments, distribution of property, and all other matters pertaining to the marital relationship.

Certain vital formalities must be carefully followed, or the written agreement will not qualify as a ground for divorce. Here, the skill and experience of the attorneys for the husband and wife are uniquely valuable in helping them reach an agreement which will be fair, just and reasonable to both parties and their children.

The agreement or a memorandum of the agreement is filed (with complete confidentiality) with the clerk of the county where either spouse lives. At the end of one year from the date of the agreement, either spouse may file and serve a summons against the other for a “no-fault” divorce.

All that must be proven to the court is that the agreement was duly executed and acknowledged and was properly filed; that the spouses have in fact lived apart during the period of the agreement up to the time of the divorce action; and that the plaintiff has substantially complied with the terms of the separation agreement. The court will grant a divorce based on that proof.

What is a separation decree?

Another form of separation is through a judgment of separation granted by the Supreme Court. This judgment is based on the same four “fault” grounds as for divorce. However, the abandonment may be for less than a year. In addition, “non-support” is a ground for a decree of separation, although not for a decree of divorce.

One year after the filing of the court’s judgment of separation, either party may sue for a “no-fault” divorce, based upon one year of living apart. A divorce does not occur automatically after a year. Court action must be taken.

What is an annulment?

An annulment is granted when a marriage is voidable or void from the beginning, that is to say, there was a defect at the time the parties entered into the marriage, enabling the court to render it invalid. Grounds for annulment are as follows:

Fraud: It may be annulled where the consent was obtained by fraud, provided the fraud was such that it would have deceived an ordinarily prudent person and was material to obtaining the other party’s consent. The fraud must be such as to go to the essence of the marriage contract. Only the injured spouse, their parent, or their relative with an interest to avoid the marriage can obtain the annulment on this ground. Fraud claims include, but are not limited to: misrepresenting one’s religious denomination or the intensity with which one practices; concealing one’s inability to procreate, secretly carrying a disease or genetic disorder that would increase the risk of procreation; coercing one’s husband into entering a marriage based on a false declaration of paternity; misrepresenting sexual proclivities; and physically being incapable of consummating the marriage.

Non-age: Both parties must be over the age of 18 years, unless a party is between 16 and 18 years old and has parental consent to marry; or is under 16 years and has both parental consent and court approval to marry. No person under the age of 14 years may marry under any circumstances. A marriage between persons under the age of 18 may be annulled, at the discretion of the court, if the spouse under 18 wants an annulment, or an action may be maintained not only by the underage spouse, but also by either their parent or guardian.

5 years of incurable insanity: If during the marriage, either party becomes incurably insane for five years or more, the marriage can be annulled. However, the sane spouse may be required to support the insane spouse for life.

Mental Incapacity: A marriage may be annulled if one or both of the parties suffered from mental illness or retardation at the time the marriage was entered into. This ground is waived if the moving party remains in the marriage after their incapacity is cured.

Duress: The parties must knowingly consent to the marriage. It may be voided if either spouse consents to marry as a result of the force or duress of the other spouse; or if either spouse cannot understand the commitment they are about to make. This is also known as lack of consent. However, subsequent cohabitation, or evidence of forgiveness on the part of the coerced spouse may disable their ability to plead under this ground.

Already married: If a spouse gets married before their previous marriage was legally dissolved or annulled, then the present marriage will be void.

How can a marriage be dissolved if a spouse has been missing?

Where your spouse is absent and missing for five years or more, you may bring a special proceeding in Supreme Court to dissolve the marriage. You must prove that your spouse has been absent for five successive years, without being known to be alive; that you believe that your absent spouse is dead; and that you made efforts to discover that he or she is still living, but no evidence proving otherwise was found. After the dissolution becomes final, the reappearance of your absent spouse does not revive your marriage.


What is the equitable distribution law?

Division of assets and the fixing of support are covered by the Equitable Distribution Law. The statute is founded on the philosophy that a marriage, especially one of long term duration, is an economic as well as a social partnership. Two classes of property were created, known as “marital” and “separate” property. Marital property is all property acquired during the marriage (regardless of how title is held), except inheritance, gifts from third persons, compensation for personal injuries and property acquired after the start of a divorce action. Marital property and marital debts are distributed between spouses in a dissolution action on flexible and equitable principles. Valuation of marital property may require expert advice. The distribution of marital property and the award of support as a result of matrimonial negotiations or proceedings may involve complicated and vital tax consequences to both parties which require expert advice.


What is spousal maintenance, child support and when does a court award counsel fees?

(a) Alimony and/or Spousal Maintenance

Alimony or Spousal Support under the statute is referred to as “maintenance,” and based upon various factors set forth in the statute may be permanent or limited in duration. Maintenance generally falls under two categories, which are: maintenance to be paid while the action of divorce is pending—called pendente lite or temporary maintenance; and maintenance that is disbursed after the divorce in a post-divorce maintenance award.

Commencing as of October 12, 2010, when awarding temporary maintenance, the court must follow the Temporary Maintenance Guidelines, which will only result in a temporary maintenance award when there is an income gap between the two parties. The spouse with more income must have at least two thirds greater income than the spouse with less income.

There are two potential calculations the court will make when deciding an award for temporary maintenance. In the first calculation, the court will determine the temporary maintenance award by subtracting 20% of the payee’s (the spouse seeking maintenance) income from 30% of the payor’s (the spouse paying maintenance) income. Alternatively, in the second calculation, the award is determined by taking 40% of the parties’ combined income and subtracting the payee’s income from that total. The result of both these calculations which is the lesser amount is the presumptive temporary maintenance award, but if the result is less than or equal to zero, the maintenance award will also be zero dollars.

However, at present the payor’s income will be capped at $543,000. Thus, any income of the payor that exceeds $543,000 will not be included in the determination of temporary maintenance. If the court wishes to include additional income beyond the $543,000 cap, it may do so based upon the consideration of 19 factors. Moreover, if the court finds that af