Divorce
New York Divorce Attorneys
Divorce is the "legal dissolution or severance of the marital relationship between two parties whose marriage was duly solemnized by a minister, clergyman or leader of the Society for Ethical Culture." In other words, a divorce constitutes the law's recognition of a marriage's end.
Divorce versus Legal Separation
The first important issue that usually comes up is whether to pursue a legal separation or a divorce. The main difference between a legal separation and divorce is that when two parties are legally separated, they may not marry another party. When they are divorced, they are free to marry someone else.
Another difference between a legal separation and a divorce is an emotional one, the feeling of finality. A divorce is a final break-up of the marriage whereas a legal separation generally leaves people feeling like they have some time to think things over and, possibly, reconcile. Very often a party desires a legal separation and not a divorce because of religious reasons.
Grounds for Divorce
Unlike every other state in the United States which has no fault divorce, New York requires that a party seeking divorce demonstrate at least one of the following six grounds to obtain a divorce:
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Cruel and inhuman treatment against an aggrieved spouse sufficient to endanger the physical or mental well being of that spouse as to render it unsafe or improper for the parties to cohabit. The longer the marriage, the greater the grounds or reasons for the divorce are required to be.
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Abandonment against an aggrieved spouse for a period of one or more years prior to the commencement of a divorce action. This ground is satisfied by a spouse's actual physical relocation from the marital residence or a spouse's refusal to engage in sexual relations with the other spouse (also known as "constructive abandonment"). In both instances, this conduct must occur without the consent of the aggrieved spouse.
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Imprisonment or confinement of a spouse in a correctional facility for a period of three or more consecutive years during the parties' marriage.
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Adultery against an aggrieved spouse, which conduct comprises a spouse's voluntary commission of an act of sexual or deviate sexual intercourse, performed by the culpable spouse with a person other than his/her spouse.
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Living separate and apart pursuant to a judgment of separation, which involves the legal conversion of a judgment of separation into a judgment of divorce. The party seeking such conversion must demonstrate both the existence of a valid judgment of separation, and that he/she is in substantial compliance with the terms of such judgment of separation. Although often confused, the most critical distinction between a judgment of separation and a judgment of divorce, is that a separated spouse can not remarry (as he/she technically remains married, although customarily all other issues of the marriage are resolved), while a divorce spouse can.
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Living separate and apart pursuant to a duly executed separation agreement, is similar to item 5 above, except it entails the legal conversion of a written, subscribed and acknowledged separation agreement into a judgment of divorce. The party seeking such conversion must demonstrate the existence of a valid written agreement of separation, and that he/she is in substantial compliance with the terms of such judgment of separation.
Where grounds must be proven, there is a general principle of law that the longer the marriage, the stronger the grounds that are required.
Fault requires divorce misconduct on the part of the other spouse.
Where marital fault may be grounds for divorce, such misconduct will have no effect on the distribution of material property of the granting of maintenance unless the misconduct is egregious.
Within the context of a New York divorce action, all other issues arising from the dissolution of the marital relationship are in play, including child custody and visitation issues, child support, equitable distribution (i.e. property and debt allocation), spousal support, and an array of varying ancillary issues such as imposition of life and health insurance obligations, attorney's and expert fees, etc.
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