Fault Grounds for Divorce

By Staff Writer

If you want a Divorce in New York you must consider several issues. You must begin by understanding the grounds for Divorce. In New York State you can not obtain a Divorce just because you want one. Many other states do allow married couples to obtain a Divorce based upon irreconcilable differences. New York does not. The rules for obtaining a Divorce in New York are stringent and they are adhered to by the Courts. Even though many of our Judges do not believe that warring parties should be forced to remain married, those Judges have taken an oath to uphold the laws of New York and they do.

If you want a Divorce in New York, in most cases you must prove that your spouse is at fault. If you and your spouse agree that both of you want to obtain a Divorce and if you can both agree on all of the issues of Divorce, such as Custody, support and the division of property, you may be able to obtain a Divorce without proving fault. If you and your spouse cannot agree on the issues surrounding the termination of your marriage, you will have to go to Court to have those issues decided. In New York, to obtain a decision on those other issues, you usually have to prove your right to a Divorce first. To do that, the party seeking the Divorce will have to prove that the other party is at fault.

The fault that you must prove to obtain a Divorce must fit the New York standards for fault. These grounds are abandonment, cruel and inhuman treatment, adultery, or confinement in a prison for a period of three or more years after marriage.

In some cases, grounds is not an issue. Either the proof of fault is sufficient to meet the legal requirements or both parties desire a divorce and are able to agree on grounds. 

Grounds can, and often are, contested. Grounds for Divorce are most often contested for monetary reasons. If the party who wants a Divorce cannot prove fault grounds for Divorce, the other party can refuse to consent to a Divorce and demand a better settlement. For example, if a party wants a Divorce, but is having an affair, the other spouse can refuse to sue for Divorce and can also refuse to consent to the Divorce. In order to obtain more than 50% of the marital estate, he or she can demand that the other party take less of the marital assets in exchange for an agreement to the Divorce. Another example is a situation where a homemaker (often the wife) who is not employed outside of the household, desires a divorce, but lacks grounds. Her spouse might negotiate that the homemaker take little or no spousal support in exchange for his consent to the Divorce. What if the facts are reversed and the Husband does not have grounds for Divorce? His Wife could negotiate more spousal support or a better distribution of marital assets in exchange for her consent to a Divorce.

The negotiations that take place when the fault grounds for Divorce are weak almost always involve money. Whether those negotiations are successful will depend on how much the spouse who wants out of the marriage is willing to pay to get out. There are other alternatives available to that spouse, but they are not always pleasant. The spouse who does not have grounds for Divorce can seek to obtain a Divorce in another state. That course of action almost always involves moving to the other state. A move to another state can entail the loss of a job, the inability to see or communicate with children, and other hardships that are simply unacceptable.

To seek a Divorce in another state, you must actually move to that state and exhibit an intention to remain in that state. Many New Yorkers will attempt a move to Vermont, given the close proximity of Vermont to New York State. In Vermont, you do not have to prove fault grounds to obtain a Divorce. However, Vermont does not easily grant Divorces to former New York State residents. If the spouse in New York contests the Divorce in Vermont, Vermont Courts will scrutinize the move to Vermont to determine if the moving spouse really has relocated permanently. In many cases, the moving spouse has retained a job in New York or spends a substantial amount of time in New York. The Vermont Court could deny the Divorce on the grounds of a lack of residency. This issue is significant. Many people are quite surprised to learn that New York attorneys have close working relationships with attorneys in neighboring states and they call upon those attorneys to become involved in any case that might be litigated in that neighboring state.