Comparing no-fault and fault-based divorce in New York

On Behalf of | Apr 26, 2023 | Divorce |

Until 2010, the only way to obtain a divorce in New York was to prove that your spouse was at fault for the breakdown in the marriage. Common evidence of fault was adultery, physical abuse or spousal abandonment. As may be imagined, proving fault could be a time and money consuming process.

In 2010, New York began to allow so-called no-fault divorce. After the law changed, a person could obtain a divorce simply by alleging that the marital relationship was irretrievably broken.

This change eliminated many lengthy and expensive trials that were necessary to resolve the fault issue.

Statutory grounds for divorce

New York still maintains seven statutory grounds for a fault-based divorce. These grounds include cruel and inhuman treatment, adultery, abandonment for one year or more, or living apart for more than one year pursuant to a separation agreement.

Prior to 2010, these last two grounds – abandonment and living apart – were used as a type of no-fault divorce. With the availability of no-fault divorce, couples seldom rely on any of the statutory grounds in seeking a divorce.

Contested divorce

In a contested divorce, even if it is based on the no-fault statute, the couple has been unable to resolve one or more of the major issues, such as child custody, child support, spousal support (alimony) and property division.

Any of these issues that remain unresolved before the trial date must be decided by the judge after each party has had an opportunity to submit evidence and arguments. This process usually requires attorneys for each party, which greatly increases the cost of the process.

Uncontested divorce

Parties who desire to avoid the anger, stress and expense of a contested divorce usually attempt to negotiate between themselves to resolve the major issues in the divorce. These couples frequently rely on mediation to find solutions to their differences.

Individuals who choose mediation as the path to their divorce settlement will often retain attorneys to advise them (many state courts now make mediation mandatory before the case will be set for trial).

Other issues

A person cannot use the courts in New York to obtain a divorce unless the marriage occurred in New York, and one spouse has lived in New York for at least one year. Other residency requirements include having lived in New York as a married couple, or both spouses are New York residents and the cause of the divorce arose in New York.

What may at first appear to be a simple, no-fault based divorce can easily become complex if unexpected issues arise regarding property division, child support, spousal support or custody.


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