Grounds for Divorce
By Nicole M. Helmer, Partner

 

 

In the firm’s winter 2007 newsletter, I outlined the residency requirements of filing for divorce in New York State. Once these requirements are met, the next step for commencement of a divorce action is grounds.

Unlike many states, New York does not permit divorce on the basis of irreconcilable differences or the parties’ bilateral decision to dissolve their marriage. New York State provides several different grounds upon which parties may commence an action for divorce pursuant to Domestic Relations Law (DRL) § 170. The most common are cruel and inhuman treatment, abandonment and constructive abandonment, adultery, and the conversion of a prior separation agreement into a divorce.

Cruel and inhuman treatment requires the Plaintiff in a divorce action to make allegations and establish that their spouse, the Defendant, engages in conduct which endangers the physical and mental well-being of the Plaintiff, thus making it unsafe for the parties to continue to live together as a married couple. Examples of cruel and inhuman treatment are endless, including physical and verbal abuse, threatening violence, emotional abuse, sexual infidelity, and alcohol or drug abuse.

Domestic Relations Law § 170 (2) provides for abandonment and constructive abandonment. Grounds of abandonment can be maintained by a Plaintiff who is able to establish that their spouse did not fulfill the basic obligations of the marital relationship for a year or more and that their failure to do so was unjustified and without consent. Abandonment can occur when one spouse leaves the marital residence without the consent of their spouse for a period of one or more years with no intention of returning. Another example of abandonment is where one spouse has changed the locks to the marital residence and refuses to allow the other spouse to enter. Constructive abandonment is defined as a refusal of one spouse to have sexual relations with the other without justification despite repeated requests.

The next ground has become well-known to anyone who owns a television set – adultery. Adultery is grounds for divorce pursuant to DRL § 170 (4) and is defined as the commission of an act of sexual or deviate sexual intercourse voluntarily performed by the Defendant after marriage with a person other than the Plaintiff. While a spouse engaging in adultery on one occasion may regret his or her decision, it only takes that one occasion to constitute grounds for divorce on the basis of adultery.

Lastly, the increasingly more popular ground for divorce is a conversion divorce, which can occur when a married couple has lived apart from one another pursuant to a written Separation Agreement. Under this ground for divorce, the Plaintiff would allege and prove that he or she has substantially performed all of the terms and conditions of such agreement.

Establishing and proving grounds for divorce in New York State is the second phase in any divorce proceeding and the attorneys at Tully Rinckey are here to assist you in this and every phase of your divorce proceeding. You can contact our office at (518) 218-7100.

 

Tully Rinckey PLLC - Attorneys and Counselors at Law
Albany Office - 441 NEW KARNER ROAD - Albany NY, 12205 - Phone: 518-218-7100 - Fax: 518-218-0496
info@tullylegal.com
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