Divorce and Separation

The New York State Bar Association has published a brochure demonstrating the requirements for marriage and divorce in New York State. These are some of the New York  Marriage Break UpState Bar Association’s findings:

  • The necessary elements for a contested divorce are:imprisonment for 3+ years; or
    adultery; 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.