The term “grounds for divorce” is a term that simply means that there is a legal basis on which a court will grant a divorce. In years past, most states, including New York, granted divorce only on fault-based grounds, such as cruelty, adultery, or abandonment. The spouse who wanted the divorce needed to prove fault on the part of the other spouse to receive a divorce.

The rationale behind requiring proof of fault for a divorce was to prevent spouses from divorcing in situations where the marriage might otherwise be saved. Of course, there are many marriages in which divorce is best for all involved, but which do not meet fault grounds for divorce. For that reason, New York and other states established “no-fault” grounds for divorce. As of 2010 in New York, couples can get a divorce based on “irretrievable breakdown” of the marriage without needing to show that either spouse is at fault for that breakdown.

All states now permit no-fault divorce, but many, like New York, also maintain fault-based grounds for divorce.

Grounds for Divorce in New York

There are seven grounds for divorce in New York state, including both fault and no-fault grounds. They are:

• Cruel and Inhuman Treatment. For a divorce based on cruel and inhuman treatment in New York, there must be proof that your physical and mental health is in danger if you continue living with your spouse, due to their abusive behavior.
• Abandonment. This means that your spouse has abandoned you for at least a year without intention to return. Abandonment can mean either that they left the home or forced you to leave the home.
• Imprisonment. Your spouse was incarcerated after the marriage and has been in prison for at least three years in a row. You can file for divorce on this ground for up to five years after your spouse’s release from prison.
• Adultery. You can get a divorce on the grounds of your spouse having committed adultery, so long as you did not encourage the adultery, forgive it afterward, or commit adultery yourself. Someone other than you must testify that the adultery happened.
• Judgment of Separation. You and your spouse have lived separately for a year due to a Judgment of Separation entered by the court, and have followed all terms of the Judgment of Separation. Because similar proof is required for a Judgment of Separation as for a divorce, most people simply divorce unless they have a reason to prefer a legal separation.
• Separation Agreement. You and your spouse have lived separately for a year due to a separation agreement that you both signed in front of a notary public. To be valid, New York separation agreements must follow certain rules, so it’s important to have a lawyer review your agreement before signing it.
• Irretrievable Breakdown of the Marriage. To get a divorce on this no-fault ground, you must allege that the relationship between you and your spouse has been broken beyond repair for at least six months. Divorce based on irretrievable breakdown cannot be granted until child custody and visitation and economic issues of the marriage have been resolved, either by the spouses’ agreement or by the court.

In some states, there is a waiting period to get a divorce on no-fault grounds, so it takes longer than a fault-based divorce. Some people file for divorce on fault grounds so that they can get divorced more quickly. There is no waiting period for a no-fault divorce in New York State. However, there may be other reasons to file for divorce based on fault.

Filing for Divorce in New York on Fault-Based or No-Fault Grounds

If you are eligible for divorce on both no-fault and fault-based grounds, the decision of how to file is a strategic one. An experienced New York divorce attorney can help you understand the best option for you, based on the law and how it applies to your unique circumstances.

In some states, one party’s fault directly affects certain outcomes in the divorce, such as the division of property; an at-fault spouse may be awarded fewer marital assets, for instance. That is not the case in New York. However, fault on the part of one spouse may indirectly affect the outcome of a divorce. If an adulterous spouse is proven to have spent marital assets on an affair, their share of marital assets may be reduced. If a spouse is proven to have been abusive, that will not reflect favorably on them if they are seeking custody of their child.

Filing for divorce on fault grounds can also provide leverage in settlement negotiations. A spouse accused of bad behavior may be more willing to settle to avoid a trial in which their alleged misdeeds become public. Your attorney can help you weigh the relative advantages and disadvantages of a fault-based divorce filing.

Strategic Advocacy for New York Divorce Matters

Most divorce cases, even contested ones, settle before a trial becomes necessary. For that reason, many attorneys who focus exclusively on family law and divorce have little trial experience. The attorneys of The Law Offices of Andreas Vasilatos are different. Our attorneys have extensive experience in both family law and litigation, enabling them to negotiate effectively with the confidence that they can protect their clients’ interests at trial if needed.

Some divorce attorneys advertise their aggressiveness, but misplaced aggressiveness can generate hostility and reduce the likelihood of reaching a favorable settlement. That leads to more fighting and stress, and higher attorney fees. Other attorneys emphasize settlement, but lack the courtroom skill to fight for their client if settlement efforts fall short. We read the room and meet the moment, consistently applying the strategy best calculated to do what is best for our client.

Contact an Experienced New York Divorce Attorney

The Law Offices of Andreas Vasilatos, PLLC has two convenient locations: in Bayside, Queens and at 7 World Trade Center in Manhattan, and serves clients in all five boroughs of New York City as well as Nassau, Suffolk and Westchester Counties. We invite you to learn more about our firm and our team, and to contact us to schedule a consultation. We look forward to working with you.