Action for Divorce

Divorce is the process of terminating a marriage. Because marriage is a legal relationship, when a couple decides that they no longer wish to remain married, one or both parties must file appropriate papers with the Supreme Court of New York asking that it grant a divorce. To break the marriage contract and get a divorce, there must be legal grounds to do so. According to Dom. Rel. Law §170, grounds for filing an action for divorce include cruel and inhuman treatment, abandonment, imprisonment, separation, and adultery. Also, because New York is a “no-fault” state, another basis for initiating an action for divorce is an “irretrievable breakdown in the relation. If you are contemplating a divorce, whether you anticipate divorce litigation or an uncontested divorce, it is important that you immediately contact an experienced New York divorce lawyer. Divorces, property division, debt allocation, and child custody are complicated. It is important that you take steps to ensure that the interests of you and our children are protected.

Grounds for Divorce

To start the process for dissolving your marriage, either you or your spouse must be a resident of New York. In the paperwork, you must state the reason or the grounds for divorce.

Irretrievable breakdown in the relation. This is the basis for a “no-fault divorce.” Dom. Rel. Law §170 (7). It means that you and your spouse simply do not get along anymore, and that there is no chance of repairing the breakdown.

Cruel and inhuman treatment. Dom. Rel. Law §170 (1). If you file for divorce based on cruel and inhuman treatment, you must show that your spouse’s recent ongoing behavior puts your physical or mental well-being at risk. Examples of actions that may show cruel and inhuman treatment include physical violence, constant criticism, leaving for extended periods without communication, starting unnecessary arguments, yelling and screaming, name calling, and belittling behavior in social situations.

Abandonment. Dom. Rel. Law §170 (2). If abandonment is the basis for your divorce, you must show that your spouse left you, has been gone for at least a year, and does not intent to return.

Imprisonment. Dom. Rel. Law §170 (3). If you or your spouse has been imprisoned for at least at least 3 consecutive years, and the imprisonment started after you got married, imprisonment can be the basis for your action for divorce.

Adultery. Dom. Rel. Law §170 (4). Adultery is defined as sexual intercourse, oral sexual conduct, or anal sexual conduct voluntarily performed with a person other than the spouse. While adultery can be grounds for divorce, there are restrictions including the statute of limitations. You must file for divorce within 5 years of the adultery.

Judgment of separation. Dom. Rel. Law §170 (5). If you and your spouse have a decree or judgment of separation, have not lived together for at least a year, and have abided by the terms of the separation order, then you could state that separation pursuant to a judgment or decree is the grounds for divorce.

Separation agreement. Dom. Rel. Law §170 (6). If you and your spouse have a signed and notarized separation agreement, have not lived together for at least a year, and have abided by the terms of the agreement, then you could state that separation pursuant to an agreement is your grounds for divorce.

Related Statutory Provisions

1. Special action: New York Domestic Relations Law, section 170-a
2. When divorce denied, although adultery proved: New York Domestic Relations Law, section 171
3. Co-respondent as party: New York Domestic Relations Law, section 172
4. Jury trial: New York Domestic Relations Law, section 173

Domestic Relations Law, section 170: Action for divorce

An action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on any of the following grounds:

(1) 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 as renders it unsafe or improper for the plaintiff to cohabit with the defendant.

(2) The abandonment of the plaintiff by the defendant for a period of one or more years.

(3) The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.

(4) The commission of an act of adultery, provided that adultery for the purposes of articles ten, eleven, and eleven-A of this chapter, is hereby defined as the commission of an act of sexual intercourse, oral sexual conduct or anal sexual conduct, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of plaintiff and defendant. Oral sexual conduct and anal sexual conduct include, but are not limited to, sexual conduct as defined in subdivision two of section 130.00 and subdivision three of section 130.20 of the penal law.

(5) The husband and wife have lived apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment, and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree or judgment.

(6) The husband and wife have lived separate and apart pursuant to a written agreement of separation, subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded, for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such agreement. Such agreement shall be filed in the office of the clerk of the county wherein either party resides. In lieu of filing such agreement, either party to such agreement may file a memorandum of such agreement, which memorandum shall be similarly subscribed and acknowledged or proved as was the agreement of separation and shall contain the following information: (a) the names and addresses of each of the parties, (b) the date of marriage of the parties, (c) the date of the agreement of separation and (d) the date of this subscription and acknowledgment or proof of such agreement of separation.

(7) The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath. No judgment of divorce shall be granted under this subdivision unless and until 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 infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce.

Contact the Law Offices of Stephen Bilkis & Associates

If you are going through a divorce, it is important that you have experienced representation. The New York divorce lawyers at the Law Offices of Stephen Bilkis & Associates have over 20 years of experience representing clients in complex divorce cases and in divorce litigation. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Nassau County, Queens, Suffolk County, Bronx, Brooklyn, Long Island, Manhattan, Staten Island, and Westchester County.