Fault vs. No‑Fault Divorce
All New York divorce actions start with the filing of a Summons in the State Supreme Court. The Summons indicates the ground for divorce and the ancillary, or additional, relief that will be sought alongside the dissolution of the marriage. With the passage of an amendment to Domestic Relations Law § 170 in 2010, a true no-fault divorce became available when the ground of irretrievable breakdown was added to the existing six fault-based grounds for divorce. Since that time the original fault grounds have fallen into disuse, as virtually all actions for divorce are now commenced with the new no-fault ground.
Even in situations where a spouse has cheated or abused the other spouse the action is usually started with the irretrievable breakdown divorce. The reason is a practical one. Given the ease with which a marriage can be dissolved using the no-fault ground, judges are not interested in taking up valuable court time with a hearing on fault-based grounds. Of course, there are often situations where the client benefits from the judge knowing who the “bad guy” is. Our skilled Long Island divorce attorneys will work those details into the presentation of the case when the circumstances demand it.
Read below to learn more about fault vs. no fault divorces or call to speak to one of our experienced divorce attorneys for a free and confidential consultation. Our firm serves Nassau and Suffolk counties on Long Island with the knowledge and experience to give you the best advice.
Grounds for Divorce in New York
The seven grounds for divorce in New York are:
- Cruel and inhuman treatment;
- Living separate and apart pursuant to a separation judgment or decree;
- Living separate and apart pursuant to a separation agreement; and
- Irretrievable breakdown for a period of at least six months.
Filing a No-Fault Divorce
A no-fault divorce is the most commonly-filed divorce in New York since the statute defining divorce grounds was amended in 2010. Because of the ease with which this ground for divorce can be proved — the plaintiff merely has to make a sworn statement that the marriage has irretrievably broken down for at least six months — there is no fighting over grounds for divorce anymore. Even a person who does not want to be divorced or, as used to be the case, wishes to use a fight over grounds to leverage some concession or other from the other spouse, will find that the Court will dissolve the marriage regardless of whether he or she disputes that the marriage is irretrievably broken. There is just no fighting the question of whether the parties will get a divorce once an action for divorce is started with the irretrievable breakdown divorce ground.
If you are thinking about pursuing a no-fault divorce, it is important to consult with a lawyer because “no-fault” does not necessarily mean “uncontested.” Keep in mind that virtually all divorces are now no-fault— even cases where the parties fight over money and access to children. Reaching a settlement on grounds for divorce is easy since there is really no way for the defendant spouse to fight the allegations of irretrievable breakdown of the marriage. The real challenge is reaching an agreement on the many issues, large and small, that affect you and your children, including support, maintenance, custody and visitation, equitable distribution, separate property, and insurance.
Filing a Fault Based Divorce
Occasionally, someone who has been the victim of adultery and/or cruelty will commence a divorce action using the appropriate fault grounds. However, those cases will also plead the no-fault ground of “irretrievable breakdown” alongside the fault grounds. Should the case go to trial, the plaintiff can use the no-fault ground to get divorced without the expense, trouble and risk of proving the fault grounds. Also, as a practical matter, it is unwise to irritate the judge by demanding an unnecessary hearing on grounds. The attorneys at Petroske Riezenman & Meyers, PC are skilled Long Island divorce attorneys adept at knowing how to weave the allegations of fault into the presentation of the case where the Court needs to know “the score” to properly evaluate issues such as custody and maintenance. For example, proof of cruel and inhuman treatment may affect a child custody decision, or proof of adultery may affect a judge’s decision regarding property division or spousal support, particularly if the adulterous spouse squandered shared finances for the sake of the affair.
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