New York, normally a forward-thinking liberal state, is still the most conservative when it comes to whether or not a married couple may be granted a divorce. Currently, in order to obtain a divorce in New York state, one spouse must allege one of the enumerated grounds set forth by the state legislature. These grounds are as follows:
1) Cruel and inhuman treatment of one spouse by the other. However, under current case law, the length of the marriage colors the actual meaning of "cruel and inhuman". While leaving the toilet seat up might amount to cruel and inhuman treatment in a six-month marriage, verbal put-downs and non-stop tirades might not amount to cruel and inhuman treatment in a twenty-year marriage.
2) Abandonment for more than one year of one spouse by the other. However, within this particular ground comes "constructive abandonment" - that is, the refusal of one spouse to engage in sexual relations for more than one year, without justification. This particular ground has morphed into a de facto "No Fault" ground in New York as most spouses who wish to be granted a divorce in New York will agree to "constructive abandonment" as their grounds. The Courts, judges, attorneys, and clients all know this is basically Court-sanctioned perjury but, in an effort to bypass a costly "grounds trial", look the other way.
3) One spouses confinement in prison for more than three years after the parties were married.
4) Adultery. Basically, this must be proven through either actual or circumstantial evidence. Not even the cheating spouse's admission of adultery will suffice. This is an arcane provision and rarely used as a grounds for divorce unless one spouse wants to humiliate the other with evidence of the adultery.
5) Living separate and apart for more than one year pursuant to a Judgment of Separation.
6) Living separate and apart for more than one year pursuant to a Separation Agreement.
However, on June 15, 2010, the New York State Senate passed a "No Fault" divorce bill. The bill will now go to the State Assembly for a vote, and if passed therein, will go to the Governor for his signature. There are, however, various amendments and versions of the bill that are being considered. Whether or not an agreement can be reached between the houses and the executive on what the final bill will allow or not allow is a game of wait-and-see. If a "No Fault" divorce law is finally passed in New York, it will end years of antiquity in a progressive state, and also allow spouses who no longer want to be married the opportunity to move forward towards the more important aspects of divorce, namely the children and assets of the marriage. I will stay positive in my thoughts that a New York "No Fault" divorce law is just moments away.
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