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Divorce: New York's Separation from the Rest

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By Javier Lavagnino, Esq. on July 02, 2009 9:52 AM

There's been quite a bit of talk about rising divorce rates in the recession, while at the same time there's also been mention of how hard times can make it tougher for couples to split up, simply as a practical matter. But if a couple going through rocky marital times lives in New York, they may find even more obstacles to getting a divorce that aren't found elsewhere.

When one or both parties to a marriage come to the difficult decision that it is time to seek a divorce, it might be assumed that it is a matter of paperwork and going through a court proceeding to obtain one, particularly where there are no difficult custody or property issues to deal with. In many places, this assumption may actually be correct, but New York bears the arguably dubious distinction of being the only state in the country to still, for the most part, require "fault" in order to obtain a divorce. In other words, even if the parties agree that they want a divorce, they may not be granted one by a court.

Here's the four grounds set forth by statute for obtaining a "fault" divorce in New York. They are: 1) adultery; 2) the cruel and inhumane treatment of a spouse (this has to have serious effects, unlike some other states with similar grounds); 3) abandonment (for at least a year); and 4) a spouse's imprisonment in jail. Noteably, the commonly cited ground of "irreconcilable differences" available in some other states, is not viable as a grounds for divorce in N.Y.

Of course, not every couple that wants a divorce in New York falls into one of those "fault" categories. So what do couples who have drifted apart do if they do not fall under any of the grounds for fault in New York? Well, the "for the most part" above was included because the law actually provides two other grounds for granting a divorce that don't involve fault. Those options both, however, involve the separation of the parties for at least a year, and one requires extra steps in court to obtain a "separation decree" or judgment.

The other option for a married couple who has come to the tough decision to split up is to fashion a separation agreement that deals with basically all the same issues that they would face in a divorce. In other words, they can come to a written agreement on issues such as child custody and visitation, child support, spousal maintenance, and division of marital assets. This can be an interim or long-term solution, but clearly requires the cooperation of the parties and their attorneys. Specific procedures are followed and the document is filed with the court. Once a year has gone by, either of the parties can pursue that version of a "no fault" divorce in New York.

Below are some more resources on divorce generally, and also some links to specific New York resources.

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