DIVORCE FACTS

Here are some basic facts about divorce.

New York is still a "fault grounds" state. This means that, unlike many other states, a person seeking divorce in New York must establish to the court that he or she has a good reason to obtain the divorce. Such claims such as "irreconcilable difficulties," while good law in other states, are insufficient as a basis of divorce in the Empire State. In fact, from 1787 until 1966, the only grounds for divorce in New York was adultery. The result was that many people established residency elsewhere in order to qualify for divorce. Even the first wife of then Governor Nelson Rockefeller went to live in Las Vegas, Nevada, for six weeks in order to divorce her husband.

Today the grounds for divorce in New York are:

• Adultery
• Cruel and inhuman treatment
• Abandonment for a perior of one or more years
• Imprisonment for three or more years
• Living separate and apart pursuant to a separation agreement or separation decree for one or more years.

Some of the grounds are obvious. Some can be more complicated.

Cruel and inhuman treatment usually means that one of the parties hit or beat the other. The language of the complaint says that one party "engaged in conduct that so endangered the mental and physical well-being of [the other party] so as to render it unsafe and improper for the parties to cohabit (live together) as husband and wife." While mental cruelty might suffice, the party claiming it would have to bring in psychiatric evidence of the mental condition.

Abandonment means that one party packed his or her bags, walked out,  never came back, and stayed away for at least one year before the action started. It, however, includes "constructive abandonment." Refusing to live together as husband and wife or unlawfully barring the other party from coming into the marital home cnstitutes "constructive abandonment" and is sufficient grounds for divorce.

Living separate and apart pursuant to a separation agreement or separation decree for one or more years are the conditions closest to no-fault grounds which New York has. Being separated pursuant to a judicial decree makes some sense when religion is an issue. Otherwise, a couple can be divorced for the same cost and effort as it takes to obtain a separation decree. Entering into a separation agreement, especially with the assistance of a Divorce Mediator, however, is a less expensive, less stressful, faster way to end a marriage. The couple enters into an Agreement, properly written and executed, and then lives separate and apart for a period of one year or more. All issues of the divorce, including division of property (such as the house), custody, visitation, support, maintenance (what we once called alimony), and all other issues are settled before anyone goes to court. While one of the parties still must file a divorce action, the court will grant the divorce, and all of the terms which were settled in the agreement will be incorporated into the divorce judgment.

Imprisonment for three or more years can be tricky. On the one hand, the defendant must have been in prison for a period of three years. On the other hand, New York has a five year statute of limitations for commencing a divorce action (except for adultery). This means that the case must begin within five years of the acts of which the plaintiff is complaining. The three years of imprisonment does not necessarily start at a definite time --- the third anniversary of the defendant's spouse's original incaraceration --- and expire five years later. It does accrue continuously each and every day for an indefinte period of years or decades from the third anniversary of incarceration until five years after the imprisoned spouse's release from prison. In Covington v. Carlton , 786 N.Y.S.2d 409, 819 N.E.2d 1025 (2004), the highest court in New York State held that the statute of limitations does run from each day that the defendnat was in jail. Therefore, even if a person were in jail for sixteen years, so long as he had been imprisoned for a full three of those years, the action would be timely if it were brought within five years of his release from jail.

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