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Fault-based or Contested Divorce in New York State

New York enacted No-Fault divorce legislation since October of 2010. New York was the last of the 50 states to pass a No-Fault divorce law.

Prior to No-Fault laws, a spouse had to prove some form of wrongdoing. No-fault divorce was designed to make divorce less confrontational. With No-Fault, a couple can be divorced without placing blame. The process becomes somewhat easier, less expensive, and causes less emotional harm to spouses, children, and dependents, family, and even friends.

Prior to No-Fault laws, it was required that one spouse plead to adultery, abandonment, felony, or another act that would warrant a divorce. In many cases, there were no such acts. The couple just felt the marriage was over. In New York, many couples got around the requirement through “collusive adultery.” Basically, an act of adultery was staged, and the wife would just happen to catch them. Then everyone would admit to the phony act in court, effectively committing perjury, and potentially opening themselves up to charges. With the adultery admitted, the divorce could be granted.

Another way couples got divorced was to take advantage of Nevada’s relatively liberal divorce laws. While “No-Fault” was not a thing back in 1861 when divorce laws were passed even before statehood, Nevada allowed for seven different reasons for divorce. The original six-month residency requirement was lowered to three months in 1927, and to six WEEKS in 1931 when gambling was legalized as a reaction to the Great Depression.

A high-profile divorce lawyer in New York in 1906, when the only legal grounds for divorce was adultery, which had to be proved in open court, saw Nevada as a way for his high-profile clients to get a divorce without public embarrassment.

For those who are a fan of the television show MASH, the Nevada divorce law was the subject of a joke when Hawkeye and Trapper didn’t want to give a helicopter pilot a letter from his wife when they realized the return address was Reno. For context, MASH took place in 1952. New York didn’t pass a No-Fault law for another 58 years.

Even now, New York is not a full No-Fault divorce state and is one of several states where you can still file for a Fault-Based or Contested divorce. In New York, fault-based divorce can be based on one of the following:

  • Cruel and inhuman treatment where it is unsafe for the parties to live together
  • Abandonment for a continuous period of one year or more
  • Imprisonment for three or more years after the parties were married
  • Adultery
  • Living apart for one or more years after obtaining a judgment of separation
  • Living apart for one or more years pursuant to a separation agreement

The use of fault-based, or contested divorce when there is a No-fault option becomes a negotiation tactic. If a spouse is a public figure or even well known in the local community, the public accusation of adultery or other nefarious act can lead to unwanted embarrassment.

However, the bar has been set very high and the accusing party must prove an act such as adultery took place. It is not enough to know that the adultery was committed, even if the spouse was caught in the act. With the level of proof being so high, the process of litigating a contested divorce can take a long time, become extremely expensive and emotionally draining, and can ultimately fail.

An act such as adultery on its own would not affect the distribution of assets, child custody, or parenting time. But the devil is in the details. If the affair led to the dissipation of marital assets, or the parent having the affair neglected their relationship with their children, or the child was aware of the act and became anxious or distraught over it, asset distribution, custody, alimony, and support could all be affected because of the adultery.

In New York, due to the No-Fault and Contested divorce laws, you have options based on your personal situation. Anthony LoPresti has been practicing in the area of Family Law for over 30 years and can provide you with an experienced counsel so you can make the best decision for you and your family.

Call us office at 516-252-022 to discuss your case.

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