New York only recognizes divorces based upon fault-based criteria, though the parties may agree to enter into a separation and have the separation agreement or judgment be the further basis for a divorce after one year. The parties may also agree to an uncontested divorce as long as one of the parties is willing to allege one of the fault based grounds or has the requisite separation agreement or judgment.
The cause of action for divorce in New York state (accusations against the defendant by the plaintiff that are grounds for divorce) are limited to:
- Cruel and inhuman treatment (Domestic Relations Law §170.1)
- Abandonment for a continuous period of one year or more (DRL §170.2)
- Imprisonment for more than three years subsequent to the marriage (DRL §170.3)
- Adultery (DRL §170.4)
- Conversion of a separation judgment (DRL §170.5)
- Conversion of a written and acknowledged separation agreement after living separate and apart for more than one year (DRL §170.6)
One or more of these grounds for divorce must be used if one party to the marriage wants a divorce. The parties can also disagree over child support, custody, alimony, division of joint assets or who is going to pay legal fees. These are known as "ancillary relief" (see below) that are requested by one or both of the parties. All divorces, even by uncontested consent, must be a based on one of the six grounds stated above.
The grounds do not include accusations of bad conduct against the plaintiff unless such bad conduct rises to the level of cruel and inhuman treatment. In New York none of the following are grounds for divorce:
- Irreconcilable differences
- Mutual consent
- No communication
Litigants, attorneys, and judges have expressed frustration at the continued failure of the New York legislature to implement no-fault divorce. New York is the only jurisdiction in the United States that does not offer a no-fault basis for divorce. The ground that comes closest to no-fault is DRL 170.5, which requires that the parties live separate and apart for a minimum period of one year after the execution of a separation agreement.
If you don't qualify under any of these categories, you cannot legally get a divorce.