Occasionally someone will call me asking about a “legal separation.” Living apart for one year and substantially performing the terms of a separation decree is a ground for divorce in New York. However, in nearly fifteen years of general practice, I have never seen one.
Many couples prefer a “separation agreement.” It can be converted into a divorce after one year if substantially performed. Separation decrees and agreements are the only “no fault” grounds for divorce in New York.
New York has no “irreconcilable differences” ground for divorce. New York’s fault grounds are:
- cruel and inhuman treatment,
- abandonment for a year or more,
- imprisonment for three years or more, and
- adultery.
Adultery is difficult
to prove; the defendant admitting it is insufficient.
Cruel and inhuman treatment can be physical or mental, making it unsafe
or for the couple to continue cohabiting. It can be proved by either specific
physical injury or a pattern of emotional abuse (including adultery).
Proof of professional medical or mental health treatment is helpful.
Abandonment and Imprisonment speak for themselves. However, they are not available to the abandoner or the imprisoned. The abandonment ground works well where the couple has been long separated.
Contested divorces can cost a fortune, especially where there are child custody and property division issues. Court fees now start at $380.00. The Rural Law Center in Plattsburgh periodically holds clinics and has a videotape available for people who want to try and do their own divorces using a kit.
Resolving child custody and support issues in Family Court before suing for divorce may save both time and money. “Poor persons” can apply to have court fees waived in divorce actions and an attorney assigned in some custody and support matters. North Country Legal Services (Legal Aid) in Plattsburgh may also help find a free attorney in uncontested divorce actions.
New York is an “equitable distribution” and not a “community property” state. “Common Law Marriage” (cohabitation) is not recognized here. New York has formulas for determining child support and pension distribution. Premarital agreements regarding property distribution upon death or divorce are helpful, even essential, especially for second marriages or where a couple owns real property or has pensions and investments.
This article is intended for general information only. You should not rely on same but consult your own attorney for specific questions. Lastly, I am a general practitioner who neither specializes in nor likes doing divorces.
Paul
J. Herrmann
Attorney at Law
Saranac Lake, NY
E-mail Paul Herrmann: pauljosephherrmann@yahoo.com