Law Office Of David L. Martin Esq., PC

A marriage is viewed as the economic union of two individuals. It does not matter who makes it or spends it during the time of the marriage because the parties are seen as an economic union.

The purpose of a divorce is to break up the economic unit. The parties to a divorce will put everything that occurred during the marriage on the table, and fairly or equitably divide it between themselves.
Before I discuss the issue of equitable distribution you need to be aware of the fact that a divorce action has two components. The first issue is grounds for divorce. New York is a fault state. You need a reason to get divorced in the State of New York. Irreconcilable differences is not a grounds for divorce in New York.
Domestic Relations Law S. 170 defines the grounds for divorce in New York. The grounds for Divorce in New York are as follows:

1. Constructive Abandonment: This is where one spouse is ready willing and able to have sexual relations and the other spouse refuses for a period exceeding one year from the date of filing. The spouse bringing this cause of action must further claim that they made requests to the other spouse to resume sexual relations, but that request was wrongfully refused. There is also a further requirement that the spouse refusing to have sexual relations have a physical impairment that would prevent them from engaging in marital relations.

2. Actual Abandonment: This is where one spouse locks the other spouse out of the marital residence or leaves the marital residence and refuses to come back. Again, the abandonment must be in excess of one year from the date of the filing.

3. Cruel and Inhuman Treatment: Cruel and inhuman treatment of the Plaintiff by the Defendant exists when the conduct of the Defendant so endangers the physical or mental well being of the Plaintiff as to render it unsafe or improper for the Plaintiff to co-habit, or remain with the Defendant.

4. Adultery: This exists when one spouse has sexual relations outside the marriage.

5. Confinement: This exists when the spouse is in State prison for a period of three or more consecutive years after the marriage.

6. That the husband and wife have lived separate and apart pursuant to a separation agreement or a Judgment of separation for a period exceeding one year.

I have had occasions where potential clients have told me that none of the grounds apply to them. In that case you can look at doing a separation agreement. A separation agreement is a marital contract between the parties. Like any other contract the agreement must have the basic elements of a contract which is offer, acceptance and consideration. Once negotiated it is signed by both parties and notarized.
In the event that you and your spouse do not have the ability to communicate and negotiate a settlement then attempting to enter into a separation agreement is a waste of time.
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