No-Fault And Fault-Based Divorce in New York

by ECL Writer
Foreign Divorces under New York Law

In the state of New York, there are two types of divorce: no-fault and fault-based. The type of divorce that a couple chooses to pursue can have a significant impact on the outcome of their divorce case.

No-Fault Divorce

No-fault divorce is a type of divorce in which neither party is required to prove that the other party did anything wrong in order to obtain a divorce. Instead, the parties can simply cite “irreconcilable differences” or “an irretrievable breakdown of the marriage” as the reason for the divorce. This type of divorce is designed to make the divorce process less adversarial and to reduce the amount of time and money that it takes to obtain a divorce.

In New York, there is a waiting period of six months for a no-fault divorce. This means that the parties must have been living separately for at least six months before a no-fault divorce can be granted.

Fault-Based Divorce

Fault-based divorce, on the other hand, is a type of divorce in which one party must prove that the other party is at fault for the breakdown of the marriage. In order to obtain a fault-based divorce, the party seeking the divorce must prove one of the following grounds:

  • Adultery
  • Abandonment (for a period of one or more years)
  • Cruel and inhumane treatment
  • Imprisonment
  • Living apart under a separation agreement for one or more years

Fault-based divorce can be a more adversarial and time-consuming process, as the parties may need to present evidence and testify in court to prove the grounds for the divorce.

When a party is able to prove one of the grounds for a fault-based divorce, the court can take that into consideration when dividing the property and awarding alimony, if applicable. In cases of adultery, the court may award a larger share of the marital property to the innocent spouse, and in cases of cruel and inhumane treatment, the court may award alimony to the victim’s spouse.

It’s important to note that while a party may allege a certain ground for divorce, the court may not necessarily grant the divorce based on that ground. The court will still consider all the relevant factors and make a decision on the divorce based on the best interest of the parties.

Choosing the Right Type of Divorce: When deciding whether to pursue a no-fault or fault-based divorce, it is important for couples to consider the potential impact that their choice may have on the outcome of their divorce case. If the parties are able to work together and agree on the terms of the divorce, a no-fault divorce may be a faster and less expensive option. However, if one party is unwilling to cooperate or if there are significant issues related to property division or alimony, a fault-based divorce may be a more appropriate choice.

It’s also worth mentioning that in New York, even if the parties are pursuing a no-fault divorce, they still have to address the same issues as in a fault-based divorce such as property division, alimony, and child custody.

Mediation and Collaborative Divorce: In New York, couples have the option to resolve their divorce issues through mediation or collaborative divorce. Mediation is a process where a neutral third party, a mediator, helps the parties to reach an agreement on the terms of the divorce. Collaborative divorce is a similar process but with the help of attorneys for both parties. These options can be a less adversarial and less expensive way to resolve the issues in a divorce, especially if the parties are able to work.

No-Fault And Fault-Based Divorce in New York
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Is No-Fault Divorce Bad?

No-fault divorce is a type of divorce in which the spouse or spouse does not need to prove any wrongdoing on the part of the other in order to obtain a divorce. There is an ongoing debate about the effects of no-fault divorce on society and families. Some argue that it can make it too easy for couples to end their marriages and may lead to a breakdown in the institution of marriage. Others argue that it allows couples to end unhappy marriages without the need for prolonged legal battles and can be beneficial for both parties and any children involved. Ultimately, whether no-fault divorce is “bad” is a matter of perspective and can depend on the specific circumstances of each case.

New York No-Fault Divorce Requirements

A spouse need simply attest that the marriage has been “irretrievably dissolved” in order to obtain a no-fault divorce in New York. It is now possible for anyone to claim in their divorce complaint that “The relationship between husband and wife has broken down irretrievably for a period of at least six months,” according to New York Domestic Relations Law 170(7), the statute establishing the new “no-fault” ground for divorce. Couples will no longer have to suffer court disputes over who is to blame for a failing marriage according to this new rule. The possibility of no-fault divorces may make it simpler for spouses to resolve their differences amicably without having to assign blame. Contact our office right away to find out more about no-fault divorce.

“Irretrievable Breakdown” vs. “Irreconcilable Differences”

“Irretrievable breakdown” and “irreconcilable differences” are both terms used in no-fault divorce laws to indicate that a marriage has come to an end and cannot be saved.

“Irretrievable breakdown” refers to the idea that the relationship between the spouses has deteriorated to the point where it cannot be repaired or fixed. This is often demonstrated by the fact that the couple has been living separately for a certain period of time, usually six months to a year, without any intention of reconciliation.

“Irreconcilable differences” is a term used to indicate that the spouses have fundamental disagreements or incompatibilities that cannot be resolved. This may be because of differences in personality, values, or goals.

In practice, both terms are used to establish that the marriage has ended and that the couple is unable to reconcile. The exact language and requirements of the grounds may vary depending on the jurisdiction.

How To File For No-Fault Divorce In New York

Filing for a no-fault divorce in New York can be a complex process, but with the right knowledge and preparation, it can be done successfully. Here is a step-by-step guide on how to file for a no-fault divorce in New York:

Meet the Residency Requirements

Before you can file for a no-fault divorce in New York, you must meet the state’s residency requirements. This means that either you or your spouse must have been a resident of the state for at least one year before filing for divorce. If you do not meet the residency requirements, you will not be able to file for divorce in New York.

Choose the Right Grounds for Divorce

New York is a no-fault divorce state, which means that either spouse can obtain a divorce without having to prove that the other spouse did something wrong. In order to file for a no-fault divorce in New York, one of the following grounds must be met:

  • The marriage has irretrievably broken down for a period of at least six months, as evidenced by the fact that the husband and wife have lived separately and apart for that period without cohabitation.
  • The couple has been living apart for more than one year under a separation agreement.

File the Divorce Papers

Once you have chosen the grounds for your divorce and met the residency requirements, you can file the divorce papers with the court. You will need to fill out several forms, including a summons, a complaint for divorce, and an affidavit of service. You will also need to pay a filing fee, which can vary depending on your county.

Serve the Papers

After you have filed the divorce papers, you will need to serve them on your spouse. This means that you will need to have a copy of the papers delivered to your spouse by a third party, such as a process server or a sheriff. Your spouse will then have the opportunity to respond to the divorce papers, and if they do not respond within the time frame set by the court, a default judgment may be entered.

Wait for the Waiting Period

After the papers have been served, there is a waiting period of at least 120 days before the divorce can be finalized. This waiting period is intended to give the couple a chance to reconcile, but if they are unable to do so, the divorce will proceed.

Attend the Hearing

If your spouse responds to the divorce papers, a hearing will be scheduled in which both parties will have the opportunity to present evidence and argue their case. During the hearing, the judge will consider factors such as the grounds for divorce, the couple’s assets and debts, and the best interests of any children involved.

Finalize the Divorce

After the hearing, the judge will issue a final order of divorce, which will include the terms of the divorce such as property division, spousal support, and child custody and support. Once the final order of divorce is entered, the divorce is considered final and the couple is legally divorced.

This is a general guide to the process of filing for no-fault divorce in New York, and the specific requirements and procedures can vary depending on the specific case and the county where the case is being heard. Additionally, the process can be complex and emotionally taxing and it’s highly recommended to consult with a divorce attorney to fully understand the requirements and the process of no-fault divorce in New York, as well as to get legal guidance and representation in the court.

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