The concept of ‘no fault divorce’ is so common that litigants may not be aware that certain states still allow a spouse to file a divorce based on fault. No fault divorce only became widespread law in the 1980s after President Reagan signed it into law. Before then, most parties had to prove a grounds for divorce or else they were out of luck. The way each state has instituted the law may vary slightly. For example, Michigan Courts do not allow a party to cite anything other than their version of a no fault divorce. Meanwhile New York Courts allow a party to file under both its version of no fault or a grounds like adultery. It is important to understand the challenges in choosing this route.
New York grounds for divorce are listed in Domestic Relations Law DRL 170. If a party wants to file for a ‘no fault divorce’ they must affirm that the marriage has been broken down for at least 6 months See, DRL 170(7). The benefit of choosing these grounds are that the parties do not have to prove a basis for the divorce to obtain one. If parties settle a divorce, they must cite this ground.
The other grounds for divorce in New York are ‘Cruel and In-Humane Treatment’; Abandonment; Imprisonment; Adultery; Divorce as after legal separation See DRL 170. If a party wishes to obtain a Judgement of Divorce based on a fault, they must have a grounds Trial. The reason for this is that a finding of fault for Adultery, for example can carry criminal penalties because it is technically a crime in New York. New York Courts will not allow a settlement based on a fault which carries criminal penalties. Interestingly an aggrieved spouse could file a lawsuit against the adulterer and obtain damages. Generally Divorce and Family Law cases, do not involve juries. However, a grounds trial is the only exception where a jury one’s peers could be chosen if one party wants a jury trial. If a litigant wants to avoid airing their ‘dirty laundry,’ generally they should file for a ‘no fault divorce.’
If you are interested in obtaining legal advice about filing for or defending a divorce action contact Diana Arnone Esq. of Diana Mohyi Attorney at Law P.C.
Divorce & Family Law Attorney 