Areas of Practice
New York has six grounds for divorce. These are cruel and inhuman treatment, abandonment for one or more years, imprisonment for three or more years, adultery, one year of living apart under a separation judgment granted by a Court, or under a separation agreement signed by the parties. “No-fault” divorce does now exist in New York State, effective for divorce filings on and after October 13, 2010.
News Flash: New Law affecting grounds for divorce filed on and after October 13, 2010. One spouse will have to swear that the marriage has been irretrievably broken down for the last six months. It is untested as to whether or not it can be opposed. The question is yet to be answered if pictures from the past six months of slow dancing together, hugging, kissing, laughing together and the like can defeat this divorce filing or not. It is already receiving conflicting court and attorney interpretations, and we must wait and see how the appellate courts handle this.
1. What constitutes cruel and inhuman treatment?
Cruel and inhuman treatment is different based on how long a marriage has lasted. The shorter the duration, the less severe the allegations need to be, the longer the duration the more severe the allegations must be. It could range from my spouse told me he/she never loved me and that I am worthless in front of others causing me severe and extreme embarrassment and humiliation to my spouse tried to strangle me and was removed from the house by the police in handcuffs as I was taken to the hospital by ambulance. Adultery can also be alleged as cruel and inhuman treatment and is easier to prove as cruel and inhuman treatment than as adultery by itself.
2. I taped my spouse admitting to that he/she committed adultery, and I also have copies of his/her emails to his/her lover discussing sex they have had, so I can prove adultery easily, right?
Wrong. To prove adultery, you need more than your spouses confession. You need more than proof he/she entered a hotel room for a few hours and then left all disheveled. You need proof of the act itself or admission from the other person as well. However, you probably have more than enough proof to allege the adultery as cruel and inhuman treatment.
3. Should I sue for a judgment of separation?
There are few reasons to do this, as then you have to sue again to seek a divorce. If you go to court, you might as well do it all. Further, under a judgment of separation, the court cannot address issues of property distribution. However, this may be a good alternative to divorce for those who have religious beliefs against divorce or need to stay married for other reasons, but want to separate and live as though divorced to some extent, but the other party will not agree.
4. Why shouldn’t I just seek a separation agreement and avoid the fight and cost of a divorce proceeding?
You should, but you need two parties to agree on how to resolve all issues. If you can do this, you can also sign a stipulation of settlement to obtain a divorce without a fight. If the two parties cannot agree, then you need the help of the court, and possibly for the court to decide all of your issues for you. A separation agreement is a good vehicle when one party needs the continuation of medical insurance benefits, or to remain married long enough for eligibility for social security benefits through your spouse’s benefits (minimum of ten years of marriage).
5. If I move out to help alleviate the problems in the house in the hopes of getting back together, is that abandonment?
No. Abandonment requires that a spouse leave the marital residence without the intent of ever returning for one year or more prior to the start of the divorce. There are also two other forms of abandonment referred to as constructive abandonment. One is when you go home and find all the locks changed and your spouse in the house refuses to let you back into the house for a year or more before the start of the divorce. In this situation, the spouse still in the house constructively abandoned the spouse who was locked out. The other form is when a spouse refuses to have sexual relations with the other spouse for one year or more prior to the start of the divorce and neither spouse has any mental or physical illness that would prevent either party from having sexual relations.
The refusal to have sex is the most common ground for divorce in a settled or uncontested divorce case.
But be careful, you may being giving silent consent to your spouse staying in the marital residence and silent consent to him or her having custody by moving out.
6. What is the difference between an uncontested divorce, a settled contested divorce and a contested divorce?
An uncontested divorce is one where all issues are resolved by the parties with or without the help of lawyers or a mediator prior to filing in court or having any court appearances.
A settled contested divorce is one where the parties did participate in pretrial litigation to at least some extent, but then settled all their issues without a trial being completed and decided by a Judge.
A contested divorce is one that has yet to be settled or goes all the way to trial and is ultimately decided by the Judge.