Although New York was the last state to implement “no fault” divorce, from the purist’s standpoint, we still do not have a true no fault law. The “no fault” divorce, “th irretrievable breakdown of the marriage for a period of at least six months” can only be asserted once the parties have settled or resolved all of their financial issues. One party can still contest the “no fault” grounds and the court will, after a trial, decide whether the person asserting the claim has proved his/her case. The “traditional grounds” for divorce, such as adultery, cruel and inhuman treatment by one party of the other, abandonment of one party by the other for a period of one or more years prior to the commencement of the divorce action or the constructive abandonment (refusal to engage in sexual relations without consent or justification) for a period of one or more years prior to the commencement of the divorce action. These grounds are still all available to the residents of New York, it seems the courts will grant the divorce on the “no fault” grounds after the financial aspects of the case are settled or determined.
In addition to divorce there are also grounds for Separation or Annulment. Parties can “legally separate” by entering into a written Separation Agreement, without the need to attend court, as long as both parties agree on the terms of the Separation. After living separate and apart for a period of one or more years under the terms of the Separation Agreement, either party may seek a divorce with that as the grounds for divorce. Aside from a Separation Agreement, the Supreme Court can grant a Judgment of Separation, which, after one year, can be grounds for a divorce as in the case of the Separation Agreement.
Philip S. Milone has been handling contested divorce and separation cases for 29 years. We understand the psychological reasons one spouse may contest the divorce or separation and we will work through this case with you to reach a acceptable resolution.
