Blogs from November, 2011


History of the "No-Fault" Divorce Law in New York

For decades, the closest thing New York had to a "no-fault" ground for divorce was a couple's physical separation for at least a year, pursuant to a Separation Agreement or Separation Judgment. That tide changed in August 2010, when then-Governor David Patterson signed legislation by which New York finally joined the ranks of the rest of the forty-nine states of this great nation offering a true no-fault ground for divorce. (The law became effective on October 13, 2010.)

If you have been reading about the recent divorce filings of the rich and famous, such as J-Lo and Mark Anthony or Kim Kardashian and Kris Humphries, then you no doubt have heard the term "Irreconcilable Differences" touted as the basis of their divorces. Until October 2010, any person seeking to end a marriage because he or she simply no longer got along with their spouse would have been disappointed to find that New York did not recognize such incompatibility as a valid reason ("ground") to terminate a marriage.

As a result, many people had to find other reasons upon which to base their complaints for divorce. This forced people who simply did not want to be married to each other anymore to construct reasons for a divorce that both parties wanted.

Filing Divorce Before New York Was a No-Fault State

In many cases, the parties would have to testify that one refused to have sexual relations with the other for a period of a year or more (Constructive Abandonment)—even if that was not completely truthful—just to establish a ground for divorce. In still other cases, one party would decide to move out of the marital home to create the ground of Actual Abandonment (one party moving out of the marital residence for a period of a year or more without the remaining spouse's consent), or the parties relocated to nearby states offering an "irreconcilable differences" ground.

Since New York must always be different, our no-fault ground for divorce is not called "irreconcilable differences," but the "irretrievable breakdown of the marriage." Sounds good, right? But what does "irretrievable breakdown of the marriage" mean?

Defining "Irretrievable Breakdown" in New York Divorces

While the legislature did not provide a definition of "irretrievable breakdown" in the statute, the courts have held—and the law confirms—that a marriage is broken down to the point of being "irretrievable" when at least one party believes that the discord between the parties has reached a point where there is no possible chance of reconciliation or remediation of the marital relationship. Essentially, the marriage has reached the "point of no return."

In New York, this discord has to continue for a period of six months or more, and only one party needs to assert "irretrievable breakdown" as a reason for requesting a divorce. Therefore, if you are in a situation where you have been married for just three months and you and your spouse just cannot get along, you will not have a basis for divorce under this ground until you have been married and unhappy for a period of at least six months.

Get More Information from a Staten Island Divorce Lawyer

So, now that you understand the "Irretrievable Breakdown" ground for divorce in New York, you may have additional questions about your own divorce matter that you need me, Attorney A. Sheralynn Dow, to answer for you. If that is the case, please call my offices for a private legal strategy session to address your concerns. We promise to offer you Diligent Representation in Your Divorce or other Family Law Matter and look forward to hearing from you.

Stay tuned for my next blog entry "That Ship Has Sailed: Serving Your Spouse With a Divorce When That Spouse Is Overseas!"

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