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Roger
Roger, Attorney
Category: Family Law
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can my husband get a divorce without mconcent or presence

Customer Question

can my husband get a divorce without mconcent or presence
Submitted: 5 years ago.
Category: Family Law
Expert:  Roger replied 5 years ago.
New York only recognizes divorces based upon fault-based criteria. Thus, you don't have to consent for the divorce to go through, but he will have to allege some ground for divorce.   

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:

1. Cruel and inhuman treatment (Domestic Relations Law §170.1)
2. Abandonment for a continuous period of one year or more (DRL     §170.2)
3. Imprisonment for more than three years subsequent to the marriage (DRL §170.3)
4. Adultery (DRL §170.4)
5. Conversion of a separation judgment (DRL §170.5)
6. 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. 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
Incompatibility
No-fault
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.

Customer: replied 5 years ago.
<p>If one side dosn't have or can afford representation the other side can basically do anything?</p><p> </p>
Expert:  Roger replied 5 years ago.
If one party wants a divorce, and has grounds, he/she can seek the divorce.

Usually, the spouse with the primary income can be forced to pay for an attorney for the other party.

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