Q : What is a divorce?     A : A divorce--referred to in some states as a "dissolution of marriage"--is a decree by a court that a valid marriage no longer exists. It leaves both parties free to remarry. It usually provides for division of property and makes arrangements for child custody and support.

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Q : May a couple get a divorce without lawyers?     A : Yes. But the complexities of property division and taxes may make it advisable for both parties to have expert legal and financial advice.

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Q: Who can file for a divorce in New York State? A: To file for a divorce in New York you must satisfy one of the following residency requirements:

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Q: What is an uncontested divorce?     A: An uncontested divorce occurs when: (a) there are no disagreements between the parties over any divorce-related issues, such as child custody and support, division of marital property or spousal support; and (b) both parties agree to the divorce, or on spouse fails to appear in the divorce action.

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Q : Are most divorces contested?    A : No. Although divorces may be emotionally contentious, most divorces (probably more than 95 percent) do not end up in a contested trial. Usually the parties negotiate and settle such things as property division, spousal support, and child custody between themselves, probably with attorneys' help. Sometimes parties reach an agreement by mediation, with a trained mediator who tries to help husband and wife identify and accommodate common interests. The parties then present their negotiated or mediated agreement to a judge. Approval is virtually automatic if the agreement is fair. If parties are unable to agree on property, support, and child custody, they may ask the court to decide one or more of these matters. One spouse may sue the other for divorce, alleging certain faults or offenses by the defendant. But this has become far less common than it once was. Most divorces now are uncontested no-fault divorces.

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Q : What is a no-fault divorce?    A : It is a divorce in which neither person blames the other for breakdown of the marriage. There are no accusations, no need to prove "guilt." The basis for no-fault divorce is the parties living separate and apart for more than a year pursuant to a written agreement of separation.

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Q : Why does the law provide for no-fault divorces?    A : No-fault divorces are considered a more humane and realistic way to end a marriage. Husbands and wives who are divorcing usually are suffering enough without adding more fuel to the emotional fires by trying to prove who did what to whom. The laws of no-fault divorce recognize that human relationships are complex and that it is difficult to prove that a marriage broke down solely because of what one person did. New York also retains fault-based grounds as an alternative way of obtaining a divorce. Some spouses want the emotional release of proving fault by their mates. However, a courtrooms is not a very good forum for such personal issues, and the accuser is usually less satisfied than he or she expected to be.

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Q : What are grounds for obtaining a divorce based on fault?    A : New York permits divorce for (1) cruel and inhuman treatment; (2) abandonment; (3) imprisonment; and (4) adultery.

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Q : What constitutes cruel and inhuman treatment?    A : The treatment of the one spouse by the other spouse must rise to the level that the physical or mental well being of his/hers is endangered and making it unsafe or improper for him/her to continue living with the other spouse. You cannot obtain a divorce simply because you do not get along with your spouse ("irreconcilable differences") or because you have arguments or because of an isolated act in an otherwise long and peaceful marriage. All alleged acts must have happened within five (5) years of the date the divorce is filed.

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Q: What constitutes abandonment?    A: An action for divorce may be maintained where one spouse abandons the another for a period of one year or longer prior to the filing for divorce. Abandonment may take the form of your spouse physically departing your marital home without any intention of returning for a period of one year or longer prior to commencing the action, and continuing to the present, without any good reason for doing so and without your consent. It also constitutes abandonment when one spouse's refusal to allow the other spouse into the home continuously for more than one year prior to commencing the action and continuing to the present. Another form of abandonment is called constructive abandonment, which involves one spouse's refusal to engage in sexual relations with the other spouse continuously for one year or longer prior to commencing the action, and continuing to the present, without consent, good cause or justification.

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Q: Can a divorce be obtained because one spouse is in prison?    A: Yes. An action for divorce may be maintained where a spouse is imprisoned for a period of at least three (3) consecutive years. The imprisonment must have commenced after the date of the marriage and the party must still be in prison when this divorce action is commenced. There is a five (5)-year time limit to start the action, beginning from the time of the completion of the third year of imprisonment.

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Q: When can you get a divorce based on adultery?     A: An action for divorce may be maintained based on adultery, which is an act of sexual or deviate sexual intercourse voluntarily performed by one spouse with a person other than his or her spouse during the course of the marriage. The ground of adultery can be difficult and expensive to prove because the testimony of the complaining spouse and the other spouse's admission are not enough and other evidentiary requirements must be satisfied. You should keep in mind that acts of adultery may qualify as acts of cruelty and entitle you to maintain a divorce action on the grounds of cruel and inhuman treatment.

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Q: What is conversion of a judgment of separation?     A: This ground is not used often. It involves a judgment of separation signed by a Judge or Referee of the Supreme Court. To maintain a divorce action the parties are required to live separate and apart under a judgement of separation from an action for separation. The couple must satisfy the terms of the judgment of separation for more than one year after the judgment was granted.

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Q: What is conversion of a separation agreement?    A: A separation agreement is an agreement between the spouses that sets forth the terms and conditions by which the parties will live apart. The agreement must be signed by the parties before a notary and filed with the County Clerk in the county where one of the parties resides. If you and your spouse have lived apart for more than one year according to the terms and conditions of a properly executed separation agreement, you may maintain an action for divorce. It may be advisable to consult an attorney regarding this ground for divorce.

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