- The necessary elements for a contested divorce are:imprisonment for 3+ years; or
cruel or inhuman treatment; or
abandonment for 1+ year; or
1 year living apart under a separation agreement; or
1 year living apart under a separation decree granted by a court; or
irretrievable breakdown of the marriage.
Although many people do not contest the reason for a divorce, in New York the following circumstances alone are not grounds for a divorce: incompatibility, irreconcilable differences and/or a “dead” marriage. In addition, New York courts have also made the following rulings:
- Condonation after the discovery of adultery by a spouse is a defense to the divorce action based on adultery.
- A court may declare a marriage void when a spouse has been incurably mentally ill for a period of 5+ years.
- Abandonment means that your spouse has intentionally left without your justification, consent, and of his/her own accord.
- Divorce will not be granted if both spouses have committed adultery.
- If one spouse actively encouraged the other to commit adultery, the court will deny the divorce.
- A man and woman must be legally capable of entering a valid marriage.
- An annulled marriage is also known a void.
- A spouse is granted five years from the discovery of the first unforgiven act of adultery for them to bring the divorce action.
- Both parties must be over the age of 18 years unless a party is between 16 and 18 years old and has parental consent to marry or is under 16 years and has both parental and court approval to marry.
- No person under the age of 14 years may marry under any circumstances.
- A marriage can be dissolved with proof that a spouse has been absent for five years without being known to be alive; believed to be dead; and that efforts were made to discover if he/she was alive and no evidence was found.
- After dissolution becomes final, the reappearance of the absent spouse does not revive the marriage.
- Spousal maintenance may be awarded to either party based on a number of factors (including but not limited to: prior standard of living, the present and future earning capacity or the parties, and the ability of the spouse seeking spousal maintenance to become self-supporting.)
- Spousal maintenance may be waved by written agreement.
- Child support is no longer an obligation once the child reaches the age of 21.
- The basic child support obligation to be paid by the non-custodial parent is based upon a percentage of the combined parental income.