Grounds For New York Divorce And Defenses

An action for divorce may be maintained by a spouse on any of the following grounds:

1. Abandonment

     New York Domestic Relations Law §170(2)

            a. Requirement for proving

The abandonment of the plaintiff by the defendant for a period of one or more years.

• the defendant spouse left the marital home; or
• the defendant spouse locked the plaintiff out of the marital residence; or
• constructive abandonment.

To establish a cause of action for a divorce on the ground of constructive abandonment within the meaning of DRL 170 (2), the spouse who claims to have been constructively abandoned must prove that the abandoning spouse unjustifiably refused to fulfill the basic obligations arising from the marriage contract and that the abandonment continued for at least one year. The refusal must be unjustified, willful and continued despite repeated requests for continued conjugal relations. See Schine v. Schine, 31 N.Y.2d 113, 335 N.Y.S.2d 58 (1972); Del Galdo v. Del Galdo, 51 A.D.2d 741, 379 N.Y.S.2d 479 (2d Dep’t 1976). The defendant spouse must not have suffered from an impairment or disability that prevented the defendant from engaging in sexual relations.

            b. Defense

Constructive abandonment: If the refusal to engage in sexual relation is justified in light of inappropriate conduct by the allegedly abandoned spouse, that spouse has no cause of action for a divorce on the ground of constructive abandonment.

In cases in involving a lock-out or leaving of the marital residence the defendant has a defense if the absence or lock-out was justified or that there is a lack of continuous abandonment. See Schine v. Schine, 31 N.Y.2d 113, 335 N.Y.S.2d 58; Del Galdo v. Del Galdo, 51 A.D.2d 741, 379 N.Y.S.2d 479. Generally, an un-rescinded and valid separation agreement or a valid separation decree is a defense to cause of action on abandonment. See Butt v. Butt, 50 A.D.2d 584, 375 N.Y.S.2d 31 (2nd Dep’t 1975).

2. Adultery

     New York Domestic Relations Law §170(4)

            a. Requirement for proving

Adultery is 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.

Under NY Penal Law § 255.17, a person is guilty of adultery when he engages in sexual intercourse with another person at a time when he has a living spouse, or the other person has a living spouse. Adultery is classified as a class B misdemeanor.

In order to prove adultery, an affidavit for the plaintiff is not sufficient, because a spouse is not competent to testify as to an adultery committed by the other spouse. CPLR 4502(a). However, a spouse is allowed give testimony to prove the marriage, disprove the adultery, or disprove a defense after evidence has been introduced tending to prove such defense.

            b. Defense

D.R.L. § 171, provides that notwithstanding the fact that a plaintiff may establish adultery, the court will not grant a divorce if any one of the following facts is proved in the divorce action:

• Where the offense was committed by the procurement or with the connivance of the plaintiff.
• Where the offense charged has been forgiven by the plaintiff. The forgiveness may be proven, either affirmatively, or by the voluntary cohabitation of the parties with the knowledge of the fact.
• Where there has been no express forgiveness, and no voluntary cohabitation of the parties, but the action was not commenced within five years after the discovery by the plaintiff of the offense charged.
• Where the plaintiff has also been guilty of adultery under such circumstances that the defendant would have been entitled, if innocent, to a divorce.

3. Cruel and Inhuman Treatment

     New York Domestic Relations Law §170(1)

            a. Requirement for proving

The cruel and inhuman treatment of the 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.

The court generally considers the parties age, the length of the marriage, the scope, degree and effect of the conduct between the parties.

Cruelty made take the form of either verbal or physical abuse. Conduct that has been considered cruel, include but not limited to: locking the spouse out of the marital residence; destroying personal belongings; making embarrassing phone calls to the other spouse’s employer; denigrating spouse in public; flaunting extramarital affair; making false accusation of extramarital affairs; threats of violence; drug addition and habitual intoxication that make is unsafe for the plaintiff to live with the defendant; etc.

A party seeking divorce on this ground must show serious misconduct, and not mere incompatibility --- a course of conduct by the defendant spouse which is harmful to the physical or mental health of the plaintiff and makes cohabitation unsafe or improper. Further, when the marriage is one of long duration, a high degree of proof of cruel and inhuman treatment is required.

            b. Defense

Defenses to a divorce action upon the grounds of cruel and inhuman treatment includes but is not limited to: (1)the five year statute of limitation - the events occurred five years prior to the date of commencement of the action. See DRL 210.

Under the present divorce statute there is no recriminatory defense in a divorce action based upon cruel and inhuman treatment and the court will probably dismiss any such affirmative defense. See Mante v. Mante, 34 A.D.2d 134, 309 N.Y.S.2d 944 (2d Dep’t 1970). However, defendant may show that misconduct by plaintiff (the lure and attraction of another woman is a classic example) was the cause of his leaving defendant wife rather than the alleged cruel and inhuman treatment of the wife. To that extent the information is material and necessary to the defense of the action. See Walden v. Walden, 41 A.D.2d 664, 340 N.Y.S.2d 709 (2d Dep’t 1973); C.P.L.R. § 3126.

4. Imprisonment

     New York Domestic Relations Law §170(3)

            a. Requirement for proving

The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant. The defendant be incarcerated at the time the action is commenced.

            b. Defense

Under DRL § 210, no action for divorce or separation may be maintained on a ground which arose more than five years before the date of the commencement of that action for divorce.

5. Living Apart Pursuant to Separation Agreement

     New York Domestic Relations Law §170(6)

            a. Requirement for proving

The husband and wife have lived separate and apart pursuant to a written agreement of separation.

The agreement of separation must be subscribed by the parties and acknowledged or proved in the form required to entitle a deed to be recorded. The parties must live separate and apart 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 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 this subscription and acknowledgment or proof of such agreement of separation.

            b. Defense

Cohabitation of itself is not sufficient to destroy a separation agreement unless there is proof that such cohabitation occurred with intent to reconcile and abandon the separation agreement. See Brody v. Brody, 180 N.Y.S. 364, 190 A.D. 806 (1st Dep’t 1920); Markowitz v. Markowitz, 381 N.Y.S.2d 676 (1st Dep’t 1976).

6. Living Apart Pursuant to Separation Decree

     New York Domestic Relations Law §170(5)

            a. Requirement for proving

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.

            b. Defense

If the parties have failed to substantially performed all the terms and conditions of such decree or judgment the defendant may have a valid defense.

It is not a defense to a judgment of separation that the parties have reconciled and cohabited. See Coppola v. Copolla, 17 A.D.2d 647, 648, 30 N.Y.S.2d 240, 242 (2d Dep’t 1962), appeal dismissed 12 N.Y.2d 712, 186 N.E.2d 123, 233 N.Y.S.2d 765 (1962); Quirk v. Quirk, 175 Misc. 703, 24 N.Y.S.2d 937 (sup. Ct. Erie County 1941). However, under DRL § 203, a joint application of the parties, accompanied with satisfactory evidence of their reconciliation, a judgment for a separation, forever, or for a limited period, may be revoked by the court.

NOTE: The use of the Internet for communications with the firm will not establish an attorney-client relationship and messages containing confidential or time-sensitive information should not be sent.