A divorce can be uncontested or contested. With an uncontested divorce, the parties work out an agreement on the terms including asset division, debt allocation, spousal maintenance, child custody, visitation, and child support. There are no issues for the court to decide. With a contested divorce, the couple is unable to agree on all of the issues. Instead, the court has to step in and determine what is fair based on the information submitted by both sides. Unlike other types of litigation, with divorce litigation, there is generally no right to a trial by jury. The only right to a jury is for the limited issue of the grounds for granting a divorce. If you are contemplating filing for a divorce, or if your spouse has already filed a complaint for divorce, immediately contact an experienced New York divorce lawyer who has the knowledge and resources to effectively advocate for your interests during this difficult time.Grounds for divorce
The process for initiating a contested divorce is to file a summons and complaint with the court. If you file, you are considered the plaintiff. You will serve the summons on the defendant, your spouse. In the complaint, the plaintiff will outline the grounds for the divorce.
According to NY Dom Rel Law § 170, there are six acceptable grounds used to obtain a New York State divorce that are based on “fault”:
- Cruel and Inhuman Treatment. If you file for divorce based on cruel and inhuman treatment, you must establish that your spouse’s actions have put you in physical danger or endangered your mental well-being. The actions must have occurred within 5 years of when you filed for divorce.
- Abandonment. If you claim that your spouse abandoned you, you must establish that your spouse must have been gone for at least one year immediately prior to the date you filed for divorce.
- Imprisonment. If your spouse has been in prison for at least 3 years beginning while you were married, then you can use imprisonment as a basis for your divorce. Your spouse must have actually served at least 3 consecutive years in prison. It is not enough that he or she has been sentenced to 3 or more years.
- Adultery. If you use this as the grounds for your divorce, the adultery must have occurred within 5 years immediately prior to the date you filed for divorce.
- Judgment of separation. If you and your spouse lived apart of at least one year pursuant to a judgment of separation or a decree of separation, and you have followed the terms of the judgment, you can use the separation as the basis for your divorce.
- Separation agreement. If you and your spouse lived apart of at least one year pursuant to a separation agreement, and you followed the terms of the agreement, you can use separation as the basis for your divorce.
If your spouse does not agree with the grounds of the divorce that you stated in your complaint, according to NY Dom Rel Law § 170, he or she can request a jury trial to decide the grounds for your divorce. After that, if there remain outstanding issues, they will be decided by the judge as there is no right to a jury trial in a divorce beyond determining the grounds for granting the divorce.Related Statutory Provisions
- Special action: New York Domestic Relations Law, section 170-a
- When divorce denied, although adultery proved: New York Domestic Relations Law, section 171
- Co-respondent as party: New York Domestic Relations Law, section 172
In an action for divorce there is a right to trial by jury of the issues of the grounds for granting the divorce.Contact the Law Offices of Stephen Bilkis & Associates
If you are going through a divorce, it is important that you contact an experienced New York divorce lawyer who understands the complexities related to property settlement, debt allocation, spousal maintenance, child custody, and child support. Contact the Law Offices of Stephen Bilkis & Associates at 1-800-NY-NY-LAW (1-800-696-9529) to schedule a free, no obligation consultation regarding your case. With over 20 years of experience, we can help. We represent clients in the following locations: Nassau County, Queens, Suffolk County, Bronx, Brooklyn, Long Island, Manhattan, Staten Island, and Westchester County.