Home » Parenting Articles » No "Irreconcilable Differences" in New York Divorces
No "Irreconcilable Differences" in New York Divorces
Many New Yorkers may be unaware of a very important caveat in New York divorce law: there is no such thing as a "no-fault" divorce.
May 22, 2010 /Parenting PR News/ -- Many New Yorkers may be unaware of a very important caveat in New York divorce law: there is no such thing as a "no-fault" divorce. Unlike every other state in the country, New York does not allow divorcing spouses to choose irreconcilable differences or another no-fault ground for the split. Instead, the state's antiquated laws require the spouse filing the divorce petition to choose a reason for the divorce - a reason that squarely places blame on the other spouse for the end of the marriage.
This can make New York divorces much more contentious, time-consuming and expensive for those who simply want to walk away from their marriage. Even in rather simple divorces in which the spouses do not have children and have few assets to divide between them, having to choose a reason for the split can be a source of great animosity.
Unfortunately, until the lawmakers in Albany decide to modernize the state's divorce laws and allow New Yorkers the dignity of a no-fault divorce, spouses seeking to go their separate ways will be forced to choose a reason for the divorce.
Statutory Grounds for Divorce in New York
Currently, there are six statutory grounds that can be asserted in a divorce petition. They include:
Cruel and inhuman treatment: When one spouse feels his or her physical or mental well-being has been endangered by the other spouse, making it unsafe to remain living together, the spouse has a five year period in which he or she can file for divorce due to cruel and inhuman treatment. This can include threats of violence or actual physical violence and emotional abuse. It also may include unjustified refusals to have sex, admitting to adultery or forcing one spouse to have sex.
Abandonment: When one spouse has left the marital home for a minimum of one year, the other spouse can seek a divorce based on abandonment. The other spouse cannot have consented to the absence and the absence cannot be justified. Abandonment also can occur when one spouse causes the other spouse to involuntarily leave the family home. For example, if the spouse refuses to have sexual relations with the other spouse or changes the locks on the doors, forcing the other spouse to leave.
Imprisonment: When one spouse has been incarcerated for at least three consecutive years, the other spouse can divorce him or her based on imprisonment.
Adultery: If one spouse has any type of voluntary sexual relations outside of the marriage - even if it only happened one time - the other spouse has a five year period in which he or she can seek divorce on the grounds of adultery. The spouse claiming adultery must have clear and convincing evidence that the act(s) occurred and third-party corroboration.
Living apart pursuant to a separation decree: If the spouses have been living separately pursuant to a separation decree entered by a court for at least one year after the granting of the judgment or decree, they can file for divorce based on the separation. While the spouses are not required to have performed all of the terms and conditions under the separation decree before filing for divorce, they must have substantially performed them.
It is important to note that in order to obtain a separation decree, the spouses must have alleged one of the legal grounds for the separation: cruel and inhuman treatment, abandonment, neglect or nonsupport, adultery or imprisonment.
Living apart pursuant to a separation agreement: If the spouses separated pursuant to a written agreement, rather than an order of decree issued by the court, they also may file for a divorce. Just like with a judicial separation decree, the spouses must have been separated for a minimum of one year after the execution of the agreement and must have substantially performed the terms and conditions of the written separation agreement prior to filing for divorce. This is the closest category New York has to a no-fault divorce.
The spouse filing the divorce petition is not limited to choosing one ground, but may choose as many as apply to his or her current situation. In cases of adultery, if the adultery did not occur until after the divorce had been filed, the spouse can amend the divorce petition to include adultery as one of the grounds for the termination of the marriage.
Once a spouse has chosen one or more grounds for the divorce, the spouse also has the burden of proving that the grounds actually exist.
Help Is Available
Some people may be hesitant to petition for divorce in New York because they do not believe any of the available grounds for divorce fit their current situation. However, this concern should not prevent New Yorkers from moving forward with their lives. An attorney experienced in handling divorces in the state can help you determine which of the statutory grounds for divorce applies to you.
For more information on New York divorce laws, contact a knowledgeable divorce attorney.
Article provided by Colwell, Ferrentino & Petroccione
Visit us at www.colwell-law.com
---
Press release service and press release distribution provided by http://www.24-7pressrelease.com |
|
|
Press Release Contact Information:
Findlaw PR
|
|
|
|
|
|
|
Advertise With Us |
About Us |
Contact Us