Grounds for Divorce Under New York's Domestic Relations Law

(a) DRL Section 170:

Section 170 of the Domestic Relations Law sets for the following grounds:

1. The cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant.
   
   
2. The abandonment of the plaintiff by the defendant for a period of one or more years.
   
   
3. The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.
   
   
4. The commission of an act of adultery, provided that adultery for the purposes of articles ten, eleven, and eleven-A of this chapter, is hereby defined as the commission of an act of sexual intercourse, oral sexual conduct or anal sexual conduct, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of plaintiff and defendant. Oral sexual conduct and anal sexual conduct include, but are not limited to, sexual conduct as defined in subdivision two of section 130.00 and subdivision three of section 130.20 of the penal law.
   
   
5. The husband and wife have lived apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment, and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree or judgment.
   
   
6. The husband and wife have lived separate and apart pursuant to a written agreement of separation, subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded, for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such agreement. Such agreement shall be filed in the office of the clerk of the county wherein either party resides. In lieu of filing such agreement, either party to such agreement may file a memorandum of such agreement, which memorandum shall be similarly subscribed and acknowledged or proved as was the agreement of separation and shall contain the following information: (a) the names and addresses of each of the parties, (b) the date of marriage of the parties, (c) the date of the agreement of separation and (d) the date of this subscription and acknowledgment or proof of such agreement of separation.
   
   

(b) Grounds Frequently Used in Uncontested Cases:

In uncontested cases, abandonment (and its corollary, constructive abandonment) is most frequently used as the ground for divorce. In many respects, abandonment is the ground in New York that most closely resembles the no-fault grounds available elsewhere. In an abandonment claim, the plaintiff must demonstrate that the defendant either left the marital residence, or locked the plaintiff out of the marital residence, for a period that has lasted at least twelve months. Constructive abandonment (which is technically the same cause of action as abandonment) involves the refusal of the defendant to engage in sexual relations for a period that has lasted at least twelve months.

Where the parties are unable to rely upon abandonment (for example, where they have been married for less than twelve months), other options for uncontested cases include a conversion divorce or, possible, cruel treatment.

The phrase ?conversion divorce? refers to DRL 170(5) ? living apart pursuant to a separation agreement and/or decree for at least a year. Of course, this necessitates a waiting period. The parties need to execute a valid separation agreement, and then commence living apart. The fact that they may already have lived apart is of no consequence. For purposes of DRL § 170(5), the one-year separation does not commence until the separation agreement is signed.

In some instances, individuals seeking an uncontested divorce will rely upon DRL 170 (1) ? cruel treatment. Because the allegations of cruelty must be set forth with specificity (including dates and locations for the various incidents comprising the cause of action), the plaintiff runs the risk of alienating or offending the defendant, perhaps motivating him or her to contest the divorce. Obviously, the advisability of alleging a cause of action for cruelty must be carefully considered if the plaintiff hopes to have an uncontested case.

(c) New York: The Last Bastion of Fault-Based Divorce:

New York has become famous (or perhaps infamous) as one of the few remaining jurisdictions that does not offer a no-fault ground for divorce. In what has become a seemingly annual rite of passage, we are treated to a deluge of news reports during each year's legislative session hinting that New York will finally join the ranks of states that have enacted laws providing for divorce based on irreconcilable differences. Just as predictably, despite the overwhelming support for the well-justified initiation of no-fault divorce in New York, each legislative session closes with inaction on this issue.

In recent years, the most vocal opposition to legislative action has come from women's rights groups, who advocated against change based on the argument that no-fault divorce would place women at a strategic disadvantage in the divorce process. This claim was ostensibly based on the supposition that a wife's ability to obstruct the process of divorce gives her valuable economic leverage.

The notion that someone should be compelled to remain in an irretrievably broken marital relationship solely because the other party is unwilling to accept the financial consequences of a divorce judgment is absurd. Surely there is a better way to promote the fair adjudication of the financial issues ancillary to divorce than to maintain otherwise unjustifiable impediments to dissolution. Moreover, it is far from clear to me that the lack of a no -fault option benefits anyone. On the contrary, I view the lack of a no-fault option as a contributing factor to the unusually high levels of acrimony, and large costs, associated with the divorce process in New York.

Notwithstanding the dismay of many litigants and members of the matrimonial bar, the reality remains that individuals seeking divorce under New York law must establish fault. The only current ground for divorce in New York that resembles no fault is DRL 170 (5) - conversion of a separation agreement into a divorce. This is a lengthy process that many litigants simply find to onerous and slow. Thus, until the legislature acts, New Yorkers are stuck with fault-based divorce, long after other states have adopted a more contemporary approach.