Divorce Law on Irreconcilable Differences in New York State

By Dennis Masino

Until New York made changes to its Domestic Relations Law in 2010, New York was the only state that continued to require proof of fault to get a divorce. New Yorkers who wanted to obtain a divorce without a legal separation had to prove that their spouses were guilty of adultery, abandonment, cruel and inhuman treatment, or imprisoned for three years or longer. The addition of irretrievable breakdown of the marriage, which is the equivalent to irreconcilable differences in other states, gave New York a no-fault ground for divorce.

History

New York has historically shown a reluctance to follow other states by making it easier, or at least less confrontational, for couples to end a marriage. Until 1966, the only ground recognized for a divorce in New York was adultery. Reform legislation subsequently added cruel and inhuman treatment, abandonment and a spouse's imprisonment for three years or longer as grounds. Each fault ground held the risk that if a person could not prove misconduct against a spouse, a judge could deny the requested divorce and leave the marriage intact.

Irretrievable Breakdown

In 2010, the New York legislature amended section 170 of the Domestic Relations Law to add subdivision 7, making irretrievable breakdown of a marriage for a period of at least six months a ground for divorce. The new law is the equivalent of the divorce ground of irreconcilable differences that exists in many other states. The amendment to the New York divorce law does not offer a definition or provide guidance to a judge on how to determine when a marriage is irretrievably broken. However, courts in other states where irretrievable breakdown is a ground for divorce have interpreted it as meaning a marriage is over and beyond hope of reconciliation, based upon the facts of each individual case.

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Obtaining a Divorce

To obtain a divorce on the ground of irretrievable breakdown, a spouse must submit a sworn affidavit, alone or together with the other spouse, stating the marital relationship has broken down irretrievably and this has been the case for at least six months. A court cannot grant the divorce until property, support, custody and visitation issues are resolved in writing between the parties or by an order of the court.

Statute of Limitations

New York imposes a five-year statute of limitations on the grounds for divorce except for abandonment and separation. Grounds for divorce, including the irretrievable breakdown of the marriage, must have occurred within five years of the start of the divorce action. For instance, a couple who reconciled after six months or more of marital difficulties nine years ago could not use that as proof of the irretrievable breakdown of the marriage in a divorce action being started today.

Contesting the Divorce

Trial courts in New York are divided as to the ability of a spouse to contest a divorce in which the only ground is irretrievable breakdown of the marriage. Some courts have allowed a spouse to challenge the allegation and demand a trial at which the spouse seeking the divorce must produce evidence proving irretrievable breakdown. Other courts have taken the opposite approach by ruling that the legislature intended to make this a true no-fault ground by removing any defenses to it. Until an appellate court rules on this issue, it will continue to be open to interpretation by trial judges.

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New York State Divorce Laws When a Spouse Has an Affair

References

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