Since October 12, 2010, New York now permits a divorce on the ground of "irretrievable breakdown of the marriage for 6 or more months." Essentially either spouse can now obtain a divorce even if their spouse opposes the granting of the divorce! Since October 12, 2010, almost all of the divorce actions started by our law firm have been based upon the No-Fault" ground, and the more traditional divorce grounds are quickly becoming irrelevant.
Cruel and inhuman treatment can generally involve either physical or mental cruelty. To be a reason for divorce, the treatment must have such a serious effect upon the physical or mental health of the person seeking the divorce that it is not safe or proper for the parties to continue the marriage. Mere incompatibility between husband and wife is not a ground for divorce in the State of New York. Some examples of acts that courts have held to constitute cruel and inhuman treatment for divorce purposes include physical attacks upon a spouse, constant screaming and profanity or other verbal abuse, gambling away the household funds, staying away from the house to often without an explanation, going out with another man or woman, and wrongfully accusing the other spouse of adulteress relations with another man or woman. Alcoholism by itself is usually not a sufficient basis for divorce unless your spouse becomes cruel or violent when intoxicated so that you fear for your health and safety. Each case stands on its own facts. It is very important that you give a detailed factual history to your divorce attorney so that he or she can judge whether or not you will have sufficient grounds for cruel and inhuman treatment.
Abandonment means that your spouse has intentionally left you without your consent and of his own or her own accord. That is, you did not force or lock your spouse out of the house. It must also be without justification. You must also prove that your spouse had no good reason for leaving you, such as your ill treatment or your consent and also 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 for a full year is also considered a constructive abandonment and may also be considered cruel and inhuman treatment.
Divorce on the grounds of imprisonment for three or more years means that the defendant spouse actually must have served three or more years in prison before an action can be brought for divorce on this ground. This applies even if the conviction is later overturned or reversed on appeal. The physical incarceration must last for a minimum of three consecutive years. Anything less will be insufficient.
Bringing an action upon the grounds of adultery, especially if your spouse is going to contest the divorce, is not a simple matter. The proof is difficult. You are not permitted to testify against your spouse and you must have a witness ready to convince the court that your spouse 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 another person. It is frequently necessary to retain the services of a Private Investigator to obtain the specific circumstantial evidence needed for trial. Since this can often be a difficult ground upon which to obtain a divorce, it is important that you discuss this issue with your matrimonial attorney carefully.
Living apart for one year pursuant to a separation agreement or a decree of separation is another ground for divorce in the State of New York. A separation agreement is a detailed written contract, usually prepared by an attorney where the parties agree to live separate and apart for the rest of their lives. It sets forth the respective rights and duties of the husband and wife with respect to the custody of children, visitation rights, support payments, distribution of property, and all other matters pertaining to the marital relationship. The same attorney is prohibited from representing both spouses, no matter how friendly the matter may appear on the surface. After a couple have signed a written separation agreement and have physically separated, either party may seek a divorce after one year of living apart pursuant to the written separation agreement provided that the person seeking the divorce has complied with all of the promises that he or she made in the separation agreement. You should bring a copy of the separation agreement with you when you meet with your matrimonial attorney for the first time in connection with obtaining a divorce.
In addition to having the usual grounds for divorce such as cruelty, abandonment, etc., the State of New Jersey also has a very flexible "no-fault" ground for divorce which New York does not have. The original "no fault ground" was living separate and apart for eighteen months. As of February of 2007, an additional "no fault ground" was added – "irreconcilable differences". The only requirement is that you need to state that there has been a breakdown of the marriage for a period of six month and there is no prospect of reconciliation.
Our firm is licensed in the State of New York, New Jersey as well as Florida.