How New York Divorces Work

The process of obtaining a divorce is different in every state. New York, in particular, is a bit complicated as it's the only state which does not have a true no-fault divorce law. Elliot Schlissel, a New York Attorney whose practice area includes divorce, estate planning and many others explained how divorce is defined, how the process works and New York's rather antiquated fault based system.

Question: How is divorced defined in New York?

Answer: Divorce is the dissolution of a marriage. At this time, New York only recognizes marriages between men and women. They do not recognize same-sex marriages. The process must be handled through the New York courts.

Question: How does the process work in New York?

Answer: The process works as follows: You go to an attorney and he or she brings a lawsuit on one of the four grounds for divorce. The four grounds are: 1) living separate and apart under a written separation agreement for a period of one year or more; 2) cruel, inhuman treatment, which has two sub-categories, a) mental cruelty or b) physical cruelty; 3) abandonment or sexual abandonment for one year; or 4) adultery.

The parties either can work out the details, which might be called an uncontested divorce, or they litigate it through the courts. If one party can prove his or her case on the grounds issue, they then get to the issues of custody (if there are children) and visitation. Either the parties work out the details or the court enters a decision concerning the issues of child support, spousal maintenance, equitable distribution of the marital assets, equitable distribution of the debts (the debts as well as the assets are divided) and all other issues involving the marriage.

Question: Does New York recognize no fault divorce?

Answer: There are 50 states in the United States. Forty-nine states have a true no-fault divorce law. New York is the only state that does not have a true no-fault divorce law. It has the most conservative, antiquated divorce law in the United States. The only way to obtain a no-fault divorce in New York is for both parties to enter into a validly executed separation agreement with attendant execution formalities and live under the terms of that agreement for a period of one year. Both parties would have to have abided by and complied with the terms of the separation agreement during that one year period.

Question: Do you believe that New York will change its view on no-fault divorce?

Answer: The reason why the divorce law in New York is so incredibly conservative has to do with the political power of various religious groups that wish to make it difficult to get a divorce in the State of New York. Each and every year, the matrimonial and family law section of the New York State Bar Association proposes a much more liberal divorce law but, for a variety of reasons, the state legislature does not pass it.