Ultimate Guide to Different Types of Divorce

If you are considering getting a divorce in New York State, you must give a reason for ending your marriage when you file. Under New York’s Domestic Relations Law, there are seven different reasons, or grounds, for divorce.

Irretrievable Breakdown or “No Fault”

The newest, and perhaps most commonly used, grounds for divorce in New York is irretrievable breakdown, also known as a “no fault” divorce. Prior to a law change in 2010, spouses were only able to file for divorce through one of the other legal grounds or by living separately for a specific amount of time and accepting all divorce terms.

To file for a no fault divorce, you and/or your spouse must attest that the marriage is irreparably damaged, and has been for at least six months. You must also show the court that you have agreed on how to distribute property, assets, debt, court costs and child support and custody, either independently or through a court order. You will not, however, be required to explain the reasons that your marriage is irretrievable.

Cruel and Inhuman Treatment

In cases of actual or threatened physical, verbal, emotional, sexual or economic abuse, you may be able to file for a divorce on the grounds of cruel and inhuman treatment. According to New York law, this type of divorce is reserved for cases in which one spouse’s behavior is so mentally or physically damaging that it is unsafe or improper for the marriage to continue.

To qualify for a divorce because of cruel and inhuman treatment, your spouse’s abusive behavior generally must be ongoing (not an isolated event) and must have occurred within the last five years. You will be asked to describe, in detail, specific information about your spouse’s actions and why living with him or her puts you in danger.

Abandonment

The court may also grant a divorce if one spouse abandons the other. There are three types of abandonment under New York law: physical abandonment is when one spouse leaves the home, constrictive abandonment occurs when one spouse refuses to have sex with the other, and abandonment by lock out is when a spouse forces his or her partner to leave. In all three cases, the abandonment must be continual and have started at least one year ago. If both spouses agree to the separation, though, it is not considered abandonment.

Imprisonment

You can also file for divorce if your spouse is imprisoned after you are married. New York law allows imprisonment as grounds for divorce if one spouse serves three or more consecutive years in prison, typically within the past five years.

Adultery

Adultery—when a person has sex with someone else without their spouse’s consent—is another legal grounds for divorce in New York. In order to be granted a divorce because of adultery, you must prove to the court that your spouse had sex with another person based on evidence other than your spouse’s admission, which is usually difficult to provide. Adultery can sometimes serve as the basis of divorce on the grounds of cruel and inhuman treatment.

Conversion of a Judgment of Separation

You may be granted a divorce through the conversion of a judgment of separation that has been issued by the state Supreme Court. This is an uncommon type of divorce, though; the process of obtaining a decree of separation from a judge is similar to filing for divorce, and most couples simply seek a divorce instead.

Conversion of a Written Separation Agreement

If you and your spouse have been living separately because of a written agreement not issued by a judge, you may also be granted a conversion of this arrangement into a divorce. You will need to show the court that you have lived apart for at least a year in accordance with the terms of the agreement.

Contested versus Uncontested

In addition to the types of legal grounds for divorce, you may be familiar with the terms “contested” and “uncontested” divorces. In an uncontested divorce, both spouses consent to the terms of the divorce. A contested divorce, however, is more complicated and occurs when spouses disagree on issues like child custody and the division of property.

An experienced divorce attorney will help you navigate the different types of divorce and decide which is most appropriate for you and, importantly, make the process a bit less daunting.