No Fault Divorce New York Style
1/06
In many States you can get a divorce by alleging “irreconcilable differences.” Where both parties agree, such a divorce can be quick, easy and inexpensive. Such is not the case in New York State where our Domestic Relations Law requires you to have grounds in order to divorce your spouse.
In New York, in order to obtain a judgment of divorce, you will have to allege one of the following grounds: (a) adultery; (b) abandonment for more than 1 year; (c) Imprisonment of your spouse for more than 3 years; (d) cruel and inhuman treatment; (e) living separate and apart for more than 1 year under a written separation agreement that has been filed with the Court; or (f) separation for more than 1 year under a Court Order of Separation.
Typically, when spouse agree to divorce and no kids are involved, it is fairly easy to negotiate a Separation Agreement. When children are involved, issues such as custody, child support, visitation, education, health insurance, etc. make the negotiation of a Separation Agreement more difficult. In either event, once the Separation Agreement is reached and filed, the clock starts ticking on the 1 year waiting period. After 1 year either spouse can move for a conversion divorce. The Court will grant a judgment of divorce based upon the Separation Agreement. The Separation Agreement will remain in place because it contains all of the rights and obligations of the parties.
Because the Legislature in New York State has not seen fit to provide an “irreconcilable differences” ground for divorce and because New York State Supreme Court Justices are not inclined to force two people who want to be divorce to remain married, many married couples elect to have one spouse sue for divorce with the agreement that the other spouse will not contest it. This allows for a “quickie” divorce that can be accomplished in a short period of time.
The lease onerous of all the grounds for divorce is the ground of “abandonment.” In New York, the Courts have also held that “constructive abandonment” constitutes a ground for divorce. Constructive abandonment occurs where the parties still reside together but there has not been any marital (sexual) relations between them in more than 1 year. Typically, this method is seen with young couples who have only been married a short time and have no children and very little financial issues between them. They are both interested in a fast divorce so that they can move on with their lives.
One spouse will file a Complaint alleging “constructive abandonment” and the other spouse will elect to not file an Answer to the Complaint, thus admitting the allegations. The parties complete a few documents contained in the New York State uncontested divorce packet and the Court will issue a Judgment of Divorce.
While New York State is still considered to be a State in which actual grounds are required for a divorce, where each party agrees and all issues have been resolved between them, the reality is fairly obvious that “irreconcilable differences” can get you an uncontested divorce in New York if you simply call it by another name.