New York Divorce: Frequently Asked Questions

Question 1:  What are the legally acceptable reasons for getting a divorce; or what are the legally acceptable grounds for divorce in New York State?

Pursuant to the Domestic Relations Law of New York State, the legally acceptable reasons for getting a divorce are: (1) cruel and inhuman treatment; (2) abandonment; (3) imprisonment; (4) adultery; (5) living separate and apart pursuant to separation judgment or decree for more then one year after the judgment was granted; (6) living separate and apart pursuant to a separation agreement for over one year.  These reasons for divorce are known as grounds for divorce. [top]

Question 2: What exactly is "cruel and inhuman" treatment?

In order to be granted a divorce based on the grounds of cruel and inhuman treatment, the physical and/or mental well-being of the plaintiff must be so endangered that it is unsafe or improper for the plaintiff to cohabit with the defendant.  Notably, a court will not grant a divorce when the plaintiff only alleges conduct that constitutes incompatibility and/or irreconcilable the differences.  [top]

Question 3:  What constitutes abandonment under the law?

Under New York law, a legally acceptable reason for divorce is abandonment.  A plaintiff may use abandonment as a ground for divorce when the defendant physically and intentionally left the plaintiff on their own volition.  Additionally, a plaintiff can plead abandonment when the defendant refuses to engage in sexual relations with the plaintiff.  This is known as constructive abandonment.  In order to plead abandonment, the defendant's actions of abandonment must be for a period of one year or longer, prior to the commencement of the action for divorce. [top]

Question 4: My spouse has been in jail for five years, can I file for divorce?

A legally acceptable ground for divorce is imprisonment.  Therefore, a plaintiff may plead imprisonment as a ground for divorce if the defendant has been incarcerated for a period of at least three consecutive years.  [top]

Question 5:  What constitutes adultery under the law?

Question 6: How many people get a divorce a year?

In 2000, in New York State, there was 59,864 divorces.  On the other hand, there was 133,542 marriages.  For approximately every two marriages, there was a divorce...click here for more on this topic.

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Question 7:  What does it mean to be living separate and apart pursuant to separation judgment or decree for more then one year after the judgment was granted?

A court can grant a separation decree upon the following grounds: (1) cruel and inhuman treatment; (2) abandonment; (3) imprisonment; (4) adultery; and (5) non-support.  Additionally, a court can grant a divorce pursuant to a separation decree after the decree is in effect for a year. [top]

Question 8:   How will the assets of the marriage be divided?

In New York, upon divorce, a court will equitably distribute marital property.  This equitable distribution system, enacted approximately 25 years ago, in part to treat marriage as an economic partnership, leaves judges with discretion in distributing the value of a family’s assets, regardless of who holds title to the property.  Absent a system that is without discretion, court rulings come down in an unpredictable nature.  For instance, in a recent decision from January 2003, a wife was awarded 50% of the appreciation in value of her husband’s hardware business, whereas, in a November 2002 decision, another court sitting in New York, awarded a husband nothing in regard to his wife’s consulting business.  These two cases are at odds with each other; however, this is not at all rare in matrimonial cases.  Many factors play a part in a decision of a court; the facts of the case, differing methodologies in valuation, the judge, and the strategy and arguments put forth by the attorneys representing the litigants.

In general, a New York court will follow the three steps for dividing property:  First, the court will determine if the asset is marital property or separate property.  Generally, with some exceptions, property that is acquired after the commencement of the marriage will be deemed marital property, and thus subject to distribution between the spouses.  On the other hand, property acquired prior to the marriage will be deemed to be separate property, and thus not subject to distribution.    However, in general, appreciation of the value of separate property, prior to the commencement of divorce action, through the efforts of one spouse will be deemed to be marital property and thus subject to equitable distribution.  In order for the appreciation of the asset to be subject to equitable distribution, a court must find that the value increase was aided or facilitated by the non-titled spouse’s direct or indirect efforts.  Once the court deems that an asset, in whole or in part, is marital property, a value should be assessed to the asset.  Third, the court must determine the equitable portion of an asset that each spouse is entitled to and how to distribute the value.  Under the laws of New York State, a court must equitably distribute marital property upon dissolution of a marriage, if at all.  The judge in these matters is given great discretion in how to apportion the marital property.  It is notable that equitable distribution is not equal distribution; instead, a court will look to factors prescribed by law.

This above answer is adapted from an article entitled Considering the Economic Fallout of Divorce authored by Gregory Scolieri which appeared in Long Island Business News.  [top]

Question 9:  How is spousal support determined? 

New York case law has held that “Consideration of the predivorce standard of living is an essential component of evaluating and properly determining the duration and amount of maintenance award to be accorded to a spouse.”  Hartog v. Hartog, 623 N.Y.S.2d 537 (1995).  “Where the spouse seeking support is [] relatively young and healthy, however, and is not required to care for young children, durational maintenance has more commonly been awarded.” Sperling v. Sperling, 165 A.D.2d 338, 567 N.Y.S.2d 538, 541 (N.Y. App. Div. 2d Dep't 1991).  The New York courts define the purpose of rehabilitative maintenance to give a spouse the ability to achieve economic independence and give them a chance to enter the employment market to become self-supporting.  Sperling v. Sperling, 567 N.Y.S.2d 538 (N.Y. App. Div. 2d Dep't 1991); See, O'Brien v. O'Brien, 66 N.Y.2d 576, 489 N.E.2d 712, 1985 N.Y. LEXIS 17941, 498 N.Y.S.2d 743 (1985) (noting that the maintenance seeks to allow the recipient an opportunity to achieve economic independence).  

In determining the amount and duration of maintenance the court shall consider: (1) the income and property of the respective parties including marital property distributed pursuant to the equitable distribution law; (2) the duration of the marriage and the age and health of both parties; (3) the present and future earning capacity of both parties; (4) the ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefor; (5) reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage;  (6) the presence of children of the marriage in the respective homes of the parties; (7) the tax consequences to each party; (8) contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party; (9) the wasteful dissipation of marital property by either spouse; (10) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; and  (11) any other factor which the court shall expressly find to be just and proper.  N.Y. Dom Rel § 236.   [top]

Question 10: How is child custody determined?

     The New York Court of Appeals has held that “[a]ny court in considering questions of child custody must make every effort to determine what is for the best interest of the child, and what will best promote its welfare and happiness. . . .  [and] there are no absolutes in making these determinations; rather, there are policies designed not to bind the courts, but to guide them in determining what is in the best interests of the child.”  Eschbach v. Eschbach,  451 N.Y.S.2d 658 (1982) (citations and quotations omitted) (emphasis added).  In a matrimonial dissolution proceeding between biological parents a determination of custody is based on the best interests of the child and there is no prima facie right to custody of the child in either parent.  N.Y. Dom. Rel., §§ 70, 240; Nehra v. Uhlar, 401 N.Y.S.2d 168 (1977).