10.50 - 4. Divorce

• Jurisdiction: New York

4. Divorce

Divorce may be sought on four fault grounds plus three nonfault grounds. The fault grounds are:

• cruel and inhuman treatment of the plaintiff by the defendant;
• adultery of the defendant;
• physical or sexual abandonment of the plaintiff by the defendant for a period of one or more years prior to the commencement of the action; and
• confinement of the defendant in prison for three or more consecutive years after the marriage of the parties.¹⁰⁷⁹

Of the three nonfault grounds, two are applicable only in the event of a legal separation where the parties have lived apart for one or more years pursuant to (1) a written separation agreement executed by both parties or (2) a judicial decree or judgment.¹⁰⁸⁰ The party seeking a divorce under either of these two nonfault grounds must submit proof that he or she has substantially complied with the terms of the separation agreement or decree.

The third nonfault ground now exists where the marriage has broken down irretrievably between parties for at least six months.¹⁰⁸¹ At first, there was a conflict among trial courts as to whether the allegation of irretrievable breakdown of the marriage is sufficient to warrant a divorce or whether a trial is necessary to prove that an irretrievable breakdown existed.¹⁰⁸² Although the Court of Appeals has not yet ruled on the issue of whether or not a trial is necessary, the consensus of decisions in lower and intermediate appellate courts is that no trial is necessary or appropriate. Those few remaining contested cases based upon cruelty require in marriages of long duration a showing of a higher degree of cruelty and a higher standard of proof than that required for marriages of short duration.¹⁰⁸³ If the parties have agreed upon a settlement, the most commonly used ground for a divorce historically has been sexual, or constructive, abandonment. However, now irretrievable breakdown is the most popular ground for divorce, whether or not other issues are contested.

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Notes:

^[1079] . DRL § 170.

^[1080] . Id.

^[1081] . DRL § 170(7).

^[1082] . See Strack v. Strack, 31 Misc. 3d 258, 916 N.Y.S.2d 759 (Sup. Ct., Essex Co. 2011) (requires a trial); A.C. v. D.R., 32 Misc. 3d 293, 927 N.Y.S.2d 496 (Sup. Ct., Nassau Co. 2011) (does not require a trial); Palermo v. Palermo, 35 Misc.3d 1211(A), 950 N.Y.S.2d 724 (Sup. Ct., Monroe Co. Oct. 28, 2011) (does not require a trial); see also Tuper v. Tuper, 98 A.D.3d 55, 946 N.Y.S.2d 719 (4th Dep’t, 2012).

^[1083] . See Hessen v. Hessen...