The New “No Fault” Divorce Law in New York

I want to preface this blog by saying that I’m a huge fan of marriage, family, Prince Charming, and (most) romantic gushy stuff (and if you want to send me flowers I prefer daisies or violet roses!).  I believe that love is sometimes a choice and couples should do everything they possibly can to stay together- in the good times and bad times.  However, I understand  that divorces are a unfortunate reality that many people of all walks of life and professions have to go through and sometimes the best decision is pack up your trailer full of horses and move on with your life.  Divorces among the agriculture industry can be particularly difficult due to complicated equitable distribution issues.  The new “no fault” divorce law in New York has left many people confused on grounds for divorce and this blog seeks to add clarification to the muddy waters.

Prior to October 13, 2010, the only two “no fault” grounds available were where the parties live separate and apart for more than one year following (1) a judgment of separation from a court or (2) the execution of a written separation agreement (“conversion divorce“).  The “fault” grounds in New York included:

1.  Adultery;

2. Cruel & inhuman treatment where the conduct of the defendant engagers the physical or mental wellbeing of the plaintiff rending it unsafe/improper for the plaintiff to cohabitate with the defendant;

3.  Actual abandonment where a spouse’s physical departure from the marital residence is unjustified, voluntary, without consent, and with an intention to not return to the marital home;

4.  Constructive abandonment where there is an unjustified failure or refusal of one spouse to engage in sexual relations with the other spouse for more than one year;

5.  Imprisonment where one spouse is confined for more than three years after marriage;

6.  Annulments/Declaration as to the Nullity of a Marriage due to bigamy, incest, physical/mental incapacity, lack of consent to marriage, and where a spouse was under 18 without consent of parent and/or court depending on age; and

7.  Dissolution where a spouse has been absent for more than five successive years and it is believed that the spouse is dead after a diligent search has been made.

The new “no fault” divorce law did not abolish any of the above grounds.  Instead, there is now a new ground for divorce where there is an “irretrievable breakdown” in the marriage for more than six months.  See DRL 170(7).  The purpose of the “no fault” law is to reduce the number of costly grounds trials in matrimonial cases in New York.  Courts are still trying to define what is and what is not an “irretrievable breakdown” in a marriage; however, the court no longer has to assign blame to one party or another when parties commence a divorce under this “no fault” ground.

For those of you who are considering getting married, please read my previous post on why I think prenups are romantic… If you are considering going through a divorced, I recommend speaking to both a licensed therapist an an attorney licensed in your jurisdiction.