How can we help you

How can we help you

How are fault-based and no-fault divorce different?

When New York State legalized no-fault divorce in 2010, it simply gave divorcing couples a new option for filing. It did not take away the fault-based grounds for divorce that already existed. So, you have a choice of whether to file claiming no fault — “irretrievable breakdown of the relationship” — or fault.

All that is required to file for a no-fault divorce, assuming you meet the jurisdictional requirements, is a sworn statement that your marriage has been broken for at least six months and there is nothing further you can do to fix it. There is no need for an explanation of why your marriage didn’t work out.

If you prefer, you may be able to file for a fault-based divorce, depending on your circumstances. However, you will have to make a showing that your spouse was responsible for the breach in your marriage and also that you are innocent of any wrongdoing. In other words, you will have to air your dirty laundry before a judge in order to prove fault, which may not be worth the effort. You should discuss the advantages and disadvantages of a fault-based divorce with your divorce attorney.

In New York, there are several fault-based grounds for divorce:

  • Cruel and inhuman treatment (abuse)
  • Abandonment of a spouse (absent for at least a year)
  • Incarceration of a spouse (for three or more continuous years)
  • Adultery
  • Living apart for at least one year pursuant to a separation order or agreement, as long as the spouse seeking divorce has complied with the order or agreement

Depending on which fault-based ground applies in your case, proving fault might have some impact on the rest of your divorce, such as property division, alimony, child custody and parenting time. For example, cruel and inhuman treatment would generally be taken into account when awarding child custody and parenting time. However, proof of adultery is generally not enough by itself to affect the other issues in your divorce.

What if I want to negotiate my divorce out of court?

If you would like to settle your divorce without a trial before a judge, you will need to file a no-fault divorce. You can do this even if one or more of the fault-based grounds for divorce applies to you. For example, even if your spouse cheated on you, you are not required to file for divorce based on adultery. You can still file for no-fault divorce.

If you have questions about divorce in New York, contact an experienced attorney today.