While New York still allows for both fault and no-fault divorces, proceeding with a divorce on an irretrievable breakdown of the marriage and without alleging or proving fault is now the standard way to proceed with a divorce in New York State. In fact, New York was the last state in the country to grant no-fault divorces when it passed legislation allowing no-fault divorce in 2010.
Before no-fault divorce, couples who wanted to divorce in New York had to do so under one of the state’s six grounds for divorce:
- Cruel and inhuman treatment. The spouse seeking a divorce must show he or she is in physical or mental danger, and it would be unsafe to continue living with the other spouse.
- Abandonment. One spouse must have abandoned the other for a year or more.
- Incarceration. One spouse must be imprisoned for three or more years in a row. The spouse must have been put into prison after the marriage began.
- Adultery. The party seeking a divorce must show the other spouse committed adultery during the marriage.
- Divorce after a legal separation agreement. Each spouse must sign and file a separation agreement and live apart for one year.
- Divorce after a judgement of separation. The Court makes its own separation judgement and the couple lives apart for one year.
The majority of these grounds require proof to the court, and can extend the divorce process and added to the cost. This led to many couples being forced to fabricate and agree on reasons to get divorced in attempts to speed up the process. Further, a judge could refuse a divorce at his/her discretion.
For example, under the fault-based divorce law, a New York judge refused to grant a divorce to Simon and Chana Taub in 2007. As both spouses refused to move out of the marital home, a judge ruled they could both live there on the condition they construct a wall that fairly divided the house in two. Finally, in 2010 when no-fault divorce passed, the Taubs were permitted to divorce and go their separate ways.
No-fault divorce in New York
For decades, proponents of no-fault divorce extolled the virtues of this way of ending a marriage. It eliminates the need for one spouse to take blame for the divorce, cuts down on unnecessary litigation, and shortens the time it takes to finalize a divorce. Studies show that divorce rates do go up significantly after no-fault divorce laws pass, but within a decade they level back down. Additionally, domestic violence and suicide rates dropped after no-fault divorce law passed.
In New York, couples may file for no-fault divorce citing an irretrievable breakdown in relationship for a period of at least six months. The marriage must be over for at least six months, and all marital issues are settled before the divorce is granted, including property division, child custody, child support, and spousal maintenance.
To schedule a consultation with an NYC divorce attorney at Berkman Bottger Newman & Schein LLP, please call us at (212) 466-6015, or reach out to us through our contact form today. We maintain offices on 5th Avenue in Manhattan, in Westchester, and in Bergen County, NJ.