New York divorce grounds and how no-fault actually works

New York was the last state in the country to allow a no-fault divorce, and when it finally did in 2010 it attached a condition no other state uses. You can swear the marriage is over and nobody can argue with you. You still cannot get divorced until the money is settled.

What are the grounds for divorce in New York?

Seven, listed in section 170 of the Domestic Relations Law:

• Cruel and inhuman treatment. Conduct by your spouse that so endangers your physical or mental well-being that living together is unsafe or improper. This is a higher bar than unhappiness, and courts read it strictly in long marriages.

• Abandonment for one year or more. Your spouse left, or locked you out, or refused all marital relations, for a continuous year.

• Imprisonment for three or more consecutive years. The confinement has to have started after the marriage.

• Adultery. Section 170(4) defines it precisely, and it is notoriously hard to prove because a spouse's own testimony is not enough.

• Living apart six months under a separation decree. You have a judgment of separation, you have lived apart for six months since it was granted, and you have substantially performed its terms.

• Living apart six months under a written separation agreement. Same idea, built on a signed and acknowledged agreement rather than a court judgment.

• Irretrievable breakdown for at least six months. One spouse swears under oath that the relationship has been broken irretrievably for six months or more.

The seventh applies to actions started on or after October 12, 2010, per the court's own Divorce FAQs.

How does no-fault divorce work in New York?

One of you states under oath that the relationship has broken down irretrievably for at least six months. That is the whole factual showing. Your spouse cannot defend against it by disagreeing, because the statute makes it a sworn statement rather than something to be proved at trial.

Then comes the sentence that runs the rest of your case. Section 170(7) says no judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses, and custody and visitation have been resolved by the parties, or determined by the court and incorporated into the judgment.

Read that as a sequencing rule. The no-fault ground does not shorten your divorce. It removes one fight, the fight about whose fault it was, and leaves every other fight exactly where it was.

Does the six months have to pass before you file?

The relationship has to have been broken down irretrievably for at least six months at the time the statement is made. In practice that means you are swearing to a state of affairs that already existed, not starting a clock at the courthouse.

That is a different thing from a statutory waiting period. New York does not make you wait a fixed number of days after filing the way Texas makes you wait 60 days. What sets your pace is service, disclosure, and whether the economic issues get resolved, which the timeline chapter breaks down stage by stage.

Should you use a fault ground in New York?

Usually not, and the reason is that fault buys you very little in New York.

Marital fault is not one of the sixteen equitable distribution factors in section 236(B)(5)(d), and it is not on the maintenance list either. Wasteful dissipation of assets is a factor, and so are transfers made in contemplation of the action without fair consideration, but those are financial findings rather than moral ones. Adultery that cost the marital estate money matters because of the money.

Pleading cruelty or adultery adds a contested factual issue, adds discovery, adds cost, and typically changes nothing about the outcome. The main reasons to consider one are strategic timing, an old case where the no-fault ground was unavailable, or a religious or immigration consideration that turns on the recital in the judgment.

What is a conversion divorce in New York?

A divorce built on a separation that already happened. Grounds five and six let you convert either a judgment of separation or a signed separation agreement into a divorce after six months of living separate and apart, as long as you have substantially performed its terms.

The agreement route has technical requirements that catch people out. Section 170(6) requires the agreement to be subscribed by the parties and acknowledged or proved in the form required to record a deed, and it has to be filed with the county clerk where either party lives. You can file a memorandum of the agreement instead of the agreement itself, listing the names and addresses, the marriage date, the date of the agreement, and the date of acknowledgment, which keeps the terms out of the public file.

If you already have a full separation agreement covering property, support, and the children, you are in a strong position either way. The economic issues are already resolved, so the no-fault ground works just as well and skips the six month separation requirement.

Can your spouse stop a New York divorce?

Not by disputing the no-fault ground. Once one party swears the relationship has been irretrievably broken for six months, that ground is established.

What your spouse can do is refuse to resolve the economic issues, and because of the condition in section 170(7) that stalls the judgment. A spouse who wants to slow things down does it by fighting about the apartment and the pension, not by claiming the marriage is fine. The answer is the court: section 170(7) is satisfied when the issues are determined by the court and incorporated into the judgment, so a contested trial ends the standoff. The contested divorce chapter covers how that path runs.

Which ground do you plead in the papers?

Whichever one you can establish, stated in the Summons with Notice or the Verified Complaint. For the no-fault ground the complaint recites that the relationship has broken down irretrievably for a period of at least six months.

Two things to keep straight when you fill out the papers:

• The ground has to line up with your residency route. If you are relying on a residency route that requires the cause to have occurred in New York, the ground you plead has to be one that happened here.

• Only the no-fault ground can be used in a joint filing. New York's joint divorce forms are built exclusively on irretrievable breakdown, so any other ground sends you back to the standard uncontested packet. The uncontested divorce chapter explains the difference between the two packets.