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