Divorce in New York is governed by Section 170 of the Domestic Relations Law. There are six grounds for divorce: adultery, one year abandonment, three years imprisonment, cruel and inhuman treatment, living separate and apart pursuant to a valid decree of separation and living separate and apart pursuant to a valid separation agreement.
As a result of the above, New York is primarily a "fault" state; that is, absent a decree of separation or a voluntary agreement, the party seeking the divorce must be able to prove the other's "fault" pursuant to one of the four fault grounds to enable that party to obtain a decree of divorce.
Adultery involves sexual relations of one party with another person without the consent or forgiveness of the other party. In the event both parties are committing adultery, then neither is entitled to a divorce on this ground in New York State.
Three years imprisonment involves the confinement of the Defendant in a prison for a period of three or more consecutive years after the parties' marriage. Interesting questions exist as to whether or not work release programs or similar innovative methods of punishment are considered confinement in prison for the purposes of a divorce.
An abandonment for one year generally involves one party leaving or walking out on the other and failing to return or provide assistance or support. A voluntary separation of the parties (without the entering into of a formal separation agreement) is not an abandonment under the terms of the statute. Constructive abandonment is where one party refuses to have sexual relations with the other for at least one year although requested to do so in a reasonable manner by the other party.
Cruel and inhuman treatment is such conduct that so endangers the physical or mental well being of the other party as renders it unsafe or improper for that party to cohabit with the other. This is more extensive than incompatibility or irreconcilable differences. In a truly contested case in a long-term marriage, the level of proof needs to be quite high. The term "mental cruelty" would fall in this category. In those situations, expert testimony such as that of a psychiatrist, psychologist, physician or certified mental health professional is usually quite helpful and, in many cases, a necessity.
Living separate and apart for more than one year pursuant to a valid decree of separation, although one of the six grounds, has rarely been used, since the grounds to obtain a judicial separation are virtually the same as to obtain a divorce.
Living separate and apart pursuant to a valid separation agreement is, in New York State, the primary "no fault" ground for a divorce. The conditions to obtain a divorce on this ground are that the parties had entered into a valid separation agreement pursuant to the provisions of the Domestic Relations Law, that the agreement was properly filed in the county in which one of the parties resided at the time the divorce was commenced and that the party seeking the divorce had substantially complied with the terms and conditions of the agreement.
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