In New York State, one must have “Grounds” to obtain a divorce.
Grounds for divorce are set forth in our Domestic Relations Law Section 170 and include only:
- Cruel and Inhuman Treatment - A “catch all” that is often abused and sometimes misused;
- Abandonment – for more than one year… may also encompass “constructive abandonment” a/k/a refusal of sexual relations;
- Confinement of Defendant to prison – self explanatory;
- Adultery – which is surprisingly difficult to prove since spouses are incompetent to testify against each other concerning this; or
- Parties have lived apart pursuant to a judgment of separation or separation agreement for at least one year- sometimes referred to as a “conversion” divorce.
In order to obtain a divorce in New York, only one of the above grounds will do the trick, nothing else. The party seeking the divorce must prove, to a jury if necessary, that he or she has sufficient grounds for divorce. And the longer parties are married, the greater the proof necessary to demonstrate sufficient grounds. Simply saying “We don’t get along any more and we both want a divorce” is insufficient.
To complicate matters, if there are no grounds for divorce, there can be no equitable distribution of property. What does that mean in English? It means that if Wife Wanda files for divorce against Husband Bob, and Bob has a great job, lots of income, and all the assets are in his name, and Wanda has little more than her dislike of Bob’s bottle collection as her grounds, Bob gets to have a trial and challenge her to prove her grounds. But why would Bob want to do that, you might say? Because if Bob defeats Wanda in a grounds trial, he will not be forced to give her any of the money he has hidden away in a Swiss bank account, or to give her the house owned in his name, or to provide her with the Mustag GTO that he just bought while leaving her with the ’82 Camry. Bob can effectively hold Wanda over the economic barrel. When this happens, Wanda is usually willing to give up what would normally be her fair share of the assets in exchange for Bob not challenging her grounds for divorce. I tend to think of this as legalized blackmail, but perhaps that is being too harsh…
You may have noticed there is no “irreconcilable differences” in that list of grounds. New York is, I believe, the only state in the union that does not have a “no-fault” divorce provision, such as irreconcilable differences. There is an outdated mode of thought in New York that the State has a vested interest in the marriage relationship. Personally, I feel that vested interests in marriage are strictly the business of the people involved in that marriage and the State has no business forcing two people who can’t stand each other to remain together. I leave it to religion to make moral determinations, those ar enot for me.
There has been a push in the past decade to bring New York in line with the rest of the country and provide a no-fault ground for divorce, but a law has yet to pass. There is currently a bill in the New York State Assembly which would add “irreconcilable differences” to the list of grounds for divorce. I am all for it! The time has come for New York to get in line with the rest of the country and give people a way out when the love is gone and there is no going back.
A grounds trial is a horrific beast to watch. I’ve seen them, and they are not pretty. The plaintiff parades a line of witnesses across the stand to say what a horrible creature the defendant is. The defendant parades a line of witnesses across the stand to say what a wonderful person he or she is and explain away the allegations of the plaintiff. In the process, both people are irrevocably scarred, any chance of dealing civilly with the other is burnt to ash, and the State has thus preserved the “sanctity” of marriage.