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Until 2010, the causes of action for divorce in New York state (accusations against the defendant by the plaintiff that are grounds for divorce) were limited to:
- Cruel and inhuman treatment (Domestic Relations Law §170.1)
- Abandonment for a continuous period of one year or more (DRL §170.2)
- Imprisonment for more than three years subsequent to the mariage (DRL §170.3)
- Adultery (DRL §170.4)
- Conversion of a separation judgment (DRL §170.5)
- Conversion of a written and acknowledged separation agreement after living separate and apart for more than one year (DRL §170.6)
Prior to 2010, all divorces, even by uncontested consent, had to be based on one of the six grounds stated above. Those grounds did not include accusations of bad conduct against the plaintiff unless such bad conduct rises to the level of cruel and inhuman treatment.
This ground is usually called a no-fault divorce. To use this ground, the marriage must be over for at least 6 months, and all economic issues, including debt, how the marital property will be divided, and custody and support of the children have been settled.
Cruel and Inhuman Treatment
To use this ground, the judge will be looking for specific acts of cruelty that happened in the last five years. It is not enough that you and your spouse had arguments or did not get along. The cruelty must rise to the level that the Plaintiff is physically or mentally in danger and it is unsafe or improper for the Plaintiff to continue living with the Defendant.
To use this ground, the spouse must have abandoned the Plaintiff for at least one year or more. Two examples of abandonment: where the spouse physically leaves the home without any intention of returning or where the spouse refuses to have sex with the other spouse, this is called “constructive” abandonment..
To use this ground, the Plaintiff must show that the spouse committed adultery during the marriage. This ground can be hard to prove because evidence from someone besides the Plaintiff and spouse is needed
If all the issues are decided between the parties they may agree to submit the papers to the court for approval; this is known as an uncontested divorce. When the defendant is served but does not answer the legal pleadings the plaintiff may seek a default judgment by application to the court. If the divorce is started with a Summons with Notice then the grounds will either have to be proven by plaintiff’s affidavit or by testimony at an inquest if the divorce is uncontested or to be granted by default. Uncontested divorces are also granted after the defendant appears and waives the right to answer the complaint. In these cases the defendant neither admits nor denies the plaintiff’s allegations, it is up to the plaintiff to prove the allegations by testimony or affidavit in such a case.