Choosing Your Grounds for Divorce in New York

As stated in my earlier Article "NY Grounds for Divorce: You Can’t Divorce For Just Any Reason!", the following are some of the common grounds for divorce in New York:

  1. Cruel and inhuman treatment
  2. Physical or constructive abandonment (one or more years)
  3. Confinement of the Defendant in prison (three or more consecutive years)
  4. Adultery
  5. Living separate and apart pursuant to a decree or judgment of separation (one or more years)
  6. Living separate and apart pursuant to a written agreement of separation (one or more years)

Grounds may play an integral role on your divorce, or ‘grounds’ may be a simple matter to deal with. Each ‘ground’ for divorce has its strengths and weaknesses in theory and practice. Alleging grounds is not as simple as determining which particular ‘ground’ fits your circumstances:

Living Under a Separation Agreement

If you or your spouse alleges Living Under a Separation Agreement for One Year or more (and it is true that you have done so), then you have already settled all issues. This is better than Living separate and apart pursuant to Judgment of Separation for one year, as in order for a Judgment of Separation to be issued, you must have court proceedings to have Judgment of Separation issued at all. In either case, the drawback of choosing either of these grounds is TIME:

  • You simply cannot sign a Separation Agreement and immediately file for divorce on these grounds, as you must wait a full year before seeking a divorce (on these grounds). Many couples want to ‘move on’ with their lives as soon as possible after deciding to divorce, so waiting a year may be just too long

Incarceration

Alleging Incarceration as grounds is simple. However (thankfully), most spouses seeking a divorce will not have a partner who is sentenced to prison for over three years after they do marry.

Adultery

To successfully obtain a divorce for Adultery, you must produce substantial evidence of your spouse’s affair (and courts generally avoid granting divorces on this ground); Alleging Adultery may also anger your spouse, much like alleging cruel and inhumane treatment.

Cruel and Inhuman Treatment

Cruel and Inhuman Treatment or Physical Abandonment. If you make allegations on any of these grounds, then your spouse may fight the divorce “on principal” for fear that agreeing to these grounds would “go on his / her record” (it is not that simple). The only time when making allegations of Cruel and Inhuman Treatment may be appropriate is when your spouse seeks to avoid the divorce in its entirety (for any moral or financial reason) or does not wish to provide you with adequate support / property / custody. It is for this reason, if you and your spouse agree to divorce (and do not have a pre-existing separation agreement), then you should choose to divorce under grounds of

Constructive Abandonment

Odd as it sounds. Most divorces in New York are granted on the grounds of constructive abandonment. Why?

  • Because it is commonly understood that choosing to pursue a divorce on these grounds indicates that neither party wishes to fight the divorce. While the parties may still disagree on other matters, such as how to divide property or how to resolve custody issues, by consenting to a divorce under grounds of constructive abandonment, the parties make the court aware that the parties both consent to have the court grant a final divorce judgment.

One party (the Plaintiff) makes the allegation that the other (the Defendant) withheld sexual relations for a period of one or more years, and the other accepts the allegations made. The only time that the Defendant will disagree to accept the allegation made is when the Defendant does not consent to the divorce, or is seeking a divorce from the other party on another ground, such as Cruel and Inhuman Treatment.

Summary

Overall, the least contentious divorces are those wherein the parties are divorced under the theory of constructive abandonment, or after the parties have lived separate and apart under the terms of a separation agreement. There are many reasons to choose any of the other grounds for divorce; however, there is always the risk that by doing so your divorce may take longer to obtain, be more emotionally stressful and (last but not least) more expensive.


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