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What is Divorce?
A divorce is referred to in some states as dissolution of marriage and is a decree by a court that a valid marriage no longer exists. A divorce leaves both parties free to remarry. It usually provides for division of property and makes arrangements for maintenance (the present form of alimony) as well as child custody and support.
In the event of divorce, the husband and wife generally are free to divide their property as they see fit. They may enter into what is called a marital settlement agreement. A settlement agreement is a contract between the husband and wife that divides property and debts and resolves other issues of the divorce.
Lawyers sometimes work with both parties to reach an agreement by negotiation or mediation by trying to help husband and wife identify and accommodate common interests. The lawyers and the two parties then present their negotiated or mediated agreement to a judge to grant the divorce under the terms of the agreement. In this situation, the divorce is made by mutual agreement and is typically referred to as an uncontested divorce.
If parties are unable to agree about property, support, and child custody, they may ask the court to decide one or more of those issues. If the parties are unable to agree to the terms of a divorce, it is typically referred to as a contested divorce. Sometimes, divorces start as contested matters and agreements are reached later on in the legal process. Most parties reach agreements either at the beginning or at some time prior to having a trial before a judge.
Grounds For Divorce
 You must satisfy one of the grounds for divorce set forth in Domestic Relations Law §170.
There are six grounds for divorce in New York. In order to prevail in an action for divorce, certain elements must be proved. Failure to prove the elements required for a divorce results in the action being dismissed.
The six grounds are as follows:
1. The cruel and inhuman treatment of plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant. There is no precise definition of the type on conduct that warrants a court in granting a divorce based on cruel and inhuman treatment. Each case is decided on its own facts. Verbal abuse, as well as physical abuse, can constitute cruelty provided the conduct is such that it renders it unsafe or improper for the parties to cohabit. In the case of Brady v. Brady, 64 NY2d 339 (1985), the Court of Appeals said that in a marriage of long duration a high degree of proof is needed to dissolve a marriage on the grounds of cruel and inhuman treatment.
2. The abandonment of the plaintiff by the defendant for a period of one or more years.Actual abandonment consists of the unjustified leaving of the marital home by one of the parties. If one of the parties leaves the marital home with the consent of the other party, there is no abandonment. Another form of abandonment is constructive abandonment, which is the unjustified refusal to engage in sexual relations with the other party. Again, if both parties consent to not engage in sexual relations, there is no constructive abandonment by either party. At the time of the commencement of the action, the abandonment must be one full year.
3. The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.At the time that a party commences a divorce action on this ground, the defendant must have been confined in prison for three consecutive years. Being sentenced to more than three years in prison does not give rise to a cause of action. The cause of action does not arise until three years of confinement has elapsed.
4. The commission of an act of adultery, provided that adultery for the purposes of articles 10, 11 and 11-A of this chapter, is hereby defined as the commission of an act of sexual or deviate sexual intercourse, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of plaintiff and defendant. Deviate sexual intercourse includes, but not limited to, sexual conduct as defined in subdivision 2 of Section 130.00 and subdivision 3 of Section 130.20 of the penal law. Adultery has been a ground for divorce since legislative divorce was enacted in 1787. Until the Divorce Reform Law in 1966, effective in 1967, it was the sole ground for divorce.Adultery can be proved by direct evidence or circumstantial evidence. Adultery cannot be proved by the confession of the party alone. Also, a spouse cannot prove adultery by his/her direct testimony, since Section 4502 of the Civil Practice Law and Rules provides that a spouse is incompetent to testify against the other spouse in a divorce founded upon adultery.Section 171 of the Domestic Relations Law provides for 4 affirmative defenses to a divorce action based on adultery. An affirmative defense is one that must be pleaded. If proved, an affirmative defense results in the dismissal of the divorce action. The 4 affirmative defenses are:
1. Procurement or connivance. Procurement is the encouragement of adultery. Connivance is the consent to the adultery.2. Forgiveness. A resumption of sexual relations after discovery of the adultery results in forgiveness (condonation).3. Statute of limitations. A divorce action founded on adultery must be brought within 5 years of the discovery of the adultery.4. Recrimination. This defense means that if the plaintiff is also guilty of adultery, he/she will not be granted a divorce.
5. The husband and wife have lived apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment, and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree or judgment.This ground for divorce is known as a "conversion divorce". If, after a judgment of separation has been granted, the parties live separate and apart for one or more years, either party may commence a divorce action based on the judgment of separation. The party commencing the action must allege and prove that he/she has substantially performed all of the terms and conditions of the judgment. Section 200 of the Domestic Relations Law sets forth the grounds for a judicial separation.
6. The husband and wife have lived separate and apart pursuant to a written agreement of separation, subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded, for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all of the terms and conditions of such agreement. Such agreement shall be filed in the office of the clerk of the county wherein either party resides. In lieu of filing such agreement, either party to such agreement may file a memorandum of such agreement, which memorandum shall be similarly subscribed and acknowledged or proved as was the agreement of separation and shall contain the following information: (a) the names and addresses of each of the parties, (b) the date of marriage of the parties, (c) the date of the agreement of separation, and (d) the date of the subscription and acknowledgment or proof of such agreement of separation.This ground for divorce is also known as a "conversion" divorce. If, after the execution of a separation agreement, the parties live separate and apart for one or more years, either party may commence an action for divorce based upon the separation agreement.
The party commencing the divorce action must allege and prove that he/she has substantially performed all of the terms and conditions of the agreement. This ground is also referred to as a "no fault" ground since the divorce is not based on fault but the living separate and apart for one or more years. However, the execution of a separation agreement is a voluntary act of the parties, i.e., one cannot be forced to sign a separation agreement.
What is Equitable Distribution?
Equitable distribution is a method for distributing property acquired by owned by either spouse upon the dissolution of the marriage, which replaces "common law" principles of property ownership. Prior to the adoption of "equitable distribution" in New York, New York was a " common law property " state. This meant that upon the dissolution of the marriage, the property owned by either spouse was distributed according to the manner in which title was held. New York is now an "Equitable Distribution State." This means that upon dissolution of a marriage, the Court must distribute "equitably" all "marital property" regardless of the manner in which title is held, considering the following factors: Income of each party at time of marriage;
- Income of each party at time of commencement of action;
- Property of each party at time of marriage;
- Property of each party at time of commencement of action;
- Duration of marriage;
- Age of both parties;
- Health of both parties;
- Need of custodial parent to occupy or own marital residence;
- Need of custodial parent to use or own household effects;
- Loss of inheritance rights upon dissolution as of date of dissolution;
- Loss of pension rights upon dissolution as of date of dissolution;
- Any award of maintenance;
- Equitable claims to or interest in or direct or indirect contribution to the acquisition of the marital property by the party not having title, including:(a) Joint efforts;(b) Expenditures;(c) Contributions as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party;
- Liquid or non-liquid character of all marital property;
- Probable future financial circumstances of each party;
- Impossibility or difficulty of evaluating any asset or interest in a business, corporation or profession;
- The desirability of retaining the asset, or interest in the business, corporation or profession free from any claim or interference by the other party;
- The tax consequences to each party;
- The wasteful dissipation of assets by either spouse;
- Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; and
- Any other factor which the Court shall expressly find to be just and proper.
What property is subject to equitable distribution?
All property acquired by either or both parties during the marriage, but before execution of a separation agreement, and before commencement of a matrimonial action, regardless of the form title is held. It does not include property provided for in a written agreement. It does not include "separate property", which is defined as property acquired before marriage; property acquired by bequest, devise, descent or gift from a party other than the spouse; compensation for personal injuries; property acquired in exchange for or the increase in value of separate property; property described as separate property pursuant to written agreement of the parties. However, the increase in value of separate property (or property acquired in exchange for separate property) is marital property to the extent that the appreciation is due in part to the direct or indirect contributions or efforts of the other spouse.
Is a business or professional practice subject to Equitable distribution?
Yes. Businesses, professional practices, and enhanced earning capacity attributable to the attainment of a career, or professional license, educational degree, profession or license is considered "property" subject to equitable distribution.
Does equitable distribution mean that all marital assets get evenly split?
No, equitable does not mean equal. Marital property must be distributed equitably between the parties, considering the circumstances of the case and of the respective parties.
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