No! Finally in August 2010 New York became the last State in the nation to pass a no-fault divorce statute which took effect in October 2010. You can now get divorced based on an irretrievable breakdown in the marriage for at least six months, provided one spouse says so under oath. This does not mean everyone can get divorced automatically. If you have children you must resolve how you will make decisions for them and how you will spend time with them; if you accumulated assets and debts during your marriage you will still have to figure out how to divide them; and if one of you needs support from the other, that will have to be worked out as well before a divorce will be granted.
Passage of this statute was intended to mean that if one spouse claims that there has been an irretrievable breakdown, the other cannot contest it, and the spouse making the claim does not have to prove it. The no-fault provision was passed after studies showed that when other states passed no-fault divorce laws, incidents of domestic violence decreased. At the same time that no-fault was passed in New York, the legislature also passed a Temporary Maintenance Act, which is a formula for spousal support while a divorce action is pending. In addition, statutes easing the ability to get interim counsel fees and child support modifications were also passed in 2010.
Other grounds for divorce still apply. In other states when no-fault was passed, fault grounds were eliminated. Not so in New York. That means you can still get divorced based on the following grounds:
- Cruel and Inhuman Treatment. The situation has to be so serious that it is unsafe or improper to continue to live together;
- Abandonment. This exists if one of you left the marital residence more than a year ago, or if one of you has refused to have sex with the other for more than a year;
- Adultery. This must be proved by third party evidence, which is not so easy to obtain. Often adultery is included as part of cruel and inhuman treatment;
- Imprisonment. The defendant must be imprisoned for three or more consecutive years;
- Decree of Separation granted by a Court more than a year ago;
- Having lived separate and apart after signing a Separation Agreement for more than a year
Teresa Ombres is a graduate of Fordham University and New York Law School and is admitted to the practice of law in the States of New York and New Jersey. She began her career in divorce and family law in 1981 and began mediating in 1996 after trainings in Community Mediation and Divorce Mediation.