Divorce Basics


Effective October 12, 2010, fault was no longer needed to obtain a divorce in New York. New York will allow a divorce if the relations between the parties have broken down for at least six months or month. This does not mean you get a “quickie” divorce. No Fault means you don’t have to prove marital fault, but the other issues regarding children and property will remain.

The first thing to understand is that the courts are not interested in why the marriage failed. Many people enter a divorce with hurt feelings and are seeking vindications. What they want is for the judge, in all his majesty, to pronounce that the offending spouse is evil and is solely at fault for the end of the marriage.

Well, that’s not going to happen. A matrimonial judge has several hundred cases on her calendar. She is not going to get involved in the messy emotional details surrounding the ending of a marriage. The court’s function is very simple. If two people want a divorce, the court will not stand in the way. The court is primarily concerned with two issues: money and children. Once a couple has decided to divorce, the only real issues that remain are the division of martial property, maintenance (what used to be called alimony), child custody and child support

New York has been a No-Fault State for all divorces filed since October 11, 2010  so, fault must still be alleged for all divorce started before then. The basic grounds for divorce are:

1. One spouse has physically abandoned the martial home for at least one year.

2. One spouse has refused sexual relations for a period of one year, as known as constructive abandonment.

3. One spouse’s conduct is so cruel and inhuman that it is physically, or psychologically unsafe for the other spouse to remain in the home.

4. Imprisonment for a period of more than five years.

5. Insanity.

6. There is has been a break down in the marital relationship for more than six months.

Divorces filed before October 12, 2010 will  continue to be granted the basis of constructive abandonment. The reason is that most parties feel more comfortable using this reason, as it does not carry any stigmatism. It basically says that the couple hasn’t have sex for a year. As a practical matter, a couple seeking divorce in all likelihood hasn’t had sex in at least a year.

Also to keep in mind, most divorces are granted on consent. That means, both the husband and wife agree that they will get divorced and reserve the right to litigate the issues of property, maintenance, child custody and child support. In the end, the vast majority of divorces, to include the property, money and children issues are settled and rarely do trials occur. However, divorce trials do occur and they can be expensive in time, more and aggravation.

Also, there are times where one of the parties does not want a divorce, and the issue of the grounds of the divorce must be litigated. These are messy trials and emotionally draining for the litigants.

Over the years the legislature and the courts have evolved a series of rules that are designed to make divorce equitable and predictable. These rules govern the division of property, the issue of maintenance, child support and child custody. Because the rules are reasonably predictable, a decent divorce lawyer can provide you with a ballpark estimate of you could expect if you went to trial.

The next thing to keep in mind is that good divorce is like a bank robbery. You need to get in fast, grab as much as you can and get out fast. The longer you stay in the bank grabbing money, the greater the chances are that someones going to be hurt. The same is true about divorce, the longer the divorce goes on, the greater the likelihood that someone will be hurt.