Grounds for Divorce in New York under DRL 170

By J. Douglas Barics
Revised August 2019
The grounds for divorce are found in Domestic Relations Law Section 170. It provides the seven grounds under which a judgment of divorce can be granted.

Introduction

Historically, divorce grounds was a significant factor in every divorce, as a marriage could only be dissolved if the party seeking the divorce was able to prove a cause of action. Up until 1966, only adultery existed as a cause of action. In that year, a reform bill was passed, which took effect the following year, adding five additional grounds. Each of these grounds was still a cause of action, and grounds trials were permitted. Additional amendments were passed in 1970 and 1973, and the Court of Appeals held in Gleason v Gleason that the new grounds applied retroactively and allowed a 1966 separation agreement could be used for a conversion divorce under the then new laws.

In 2010, New York became the last state to enact true no fault and DRL 170 was amended to include a seventh ground for divorce. DRL 170(7) provides that relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath.

The new grounds were challenged on the basis that the defending party should be able have the court decide if the marriage has broken down irretrievably. Case law has held that based on legislative intent was to eliminate litigation over grounds and that a simple sworn statement is sufficient to dissolve a marriage under DRL 170(7).

In doing so, one court has held that since there is no defense to a no fault divorce, it cannot be a cause of action. This distinction is important if the residency requirements under DRL 230 rely on the cause taking place in New York.

Read More: Residency Requirements in New York

If residency is based on the cause of action, DRL 170(7) may not be sufficient and either different grounds or a different basis for residency should be explored, as relying on DRL 170(7) as a grounds for establishing residency can be a trap for the unwary.

Read More: Stancil v Stancil

1. Cruel and Inhuman Treatment

DRL 170(1): Cruel and inhuman treatment such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper to cohabit with the defendant.

Conduct which endangers either physical or mental well being may constitute cruel and inhuman treatment, provided that it makes it unsafe or improper to continue to live together. The 1974 Court of Appeals case of Hessen v. Hessen held that the longer the marriage, the higher the standard it would apply in determining whether conduct constitutes cruel and inhuman treatment sufficient to grant a divorce. This means that the longer the marriage, the harder it is to obtain a divorce under DRL 170(1). This holding was re-affirmed by the Court of Appeals again in 1985 in Brady v. Brady. It rejected the argument that the 1980 changes to the divorce laws, which abolished the gender based alimony statute and provided for equitable distribution, made the Hessen standards no longer necessary. Instead, the Court of Appeals affirmed the holding of Hessen, and both cases remain good law today.

There is a five year statue of limitations for any act of cruel and inhuman treatment under Domestic Relations Law 210. However, like any affirmative defense, it must be raised or it is waived.

2. Abandonment

DRL 170(2): Abandonment by the defendant for one year or more.

Abandonment consists of four elements:

(a) voluntary separation of one spouse from the other

(b) an intent not to resume cohabitation

(d) no justification

When there is no actual abandonment, the courts can impose an abandonment claim based on the actions of the parties. The most common acts under which the courts construct abandonment (called constructive abandonment) are as follows:

(a) One spouse locks the other spouse out of the marital home

(b) The actions of one spouse makes it impossible to live together

The Court of Appeals held in Diemer v Diemer 8 N.Y.2d 206 (Court of Appeals, 1960) that a refusal of sexual relations constitutes abandonment. While Diemer was decided in 1960 under an action for a separation, the definition of abandonment for a divorce action mirrors that of a separation, with the only additional requirement that it be for one year or more, and constructive abandonment is a recognized ground today.

3. Imprisonment

DRL 170(3) Confinement of the defendant in prison for a period of three or more consecutive years after the marriage of the plaintiff and the defendant.

The imprisonment must be actual, not merely a sentencing. The statute is unclear as to whether the defendant must currently be incarcerated for the divorce action to be maintained. However, this question was answered in 2004 by the Court of Appeals when it addressed the question as to when the five year statute of limitations under DRL 210 began to run. In Covington v. Walker 3 NY3d 287 (2004), the Court of Appeals rejected the claim that the statute of limitations began on the date of incarceration. Instead, the Court held that the five year limitation begins to run on the date of release. Thus, there is no requirement that the defendant be actually imprisoned.

4. Adultery

DRL 170(4) The commission of an act of adultery, …, is hereby defined as the commission of an act of sexual or deviate sexual intercourse, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of plaintiff and defendant. Deviate sexual intercourse includes, but not limited to, sexual conduct as defined in subdivision two of Section 130.00 and subdivision three of Section 130.20 of the penal law.

Adultery means sexual intercourse, and anything less is not sufficient for the court to grant a divorce. Adultery can be proven by direct or circumstantial evidence. However, a spouse's admission to adultery is not sufficient, nor can a spouse testify that his or her spouse committed adultery. CPLR 4502(a) provides that a spouse is incompetent to testify against a spouse to prove adultery. The rational behind this rule is to protect marital harmony, but begs the question as to how much harmony there is to protect during a divorce trial.

There are four affirmative defenses to adultery which are listed in Domestic Relations Law Section 171. Note that they must be raised in the pleadings or they are waived.

(1) The plaintiff caused or consented to the adultery.

(2) The plaintiff has forgiven the defendant.

(3) More than 5 years has passed since the discovery of the adultery. DRL 210.

(4) The plaintiff has also committed adultery.

In Golub v. Ganz, 22 NY AD 3d 919 (3d Dept. 2005) the court granted the divorce on the basis of adultery, despite the adultery occurring after the divorce was commenced.

5. Living apart pursuant to a decree or judgment of separation for one year

DRL 170(5) Living apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment, and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree.

A judgment of separation is the result of an action for a separation pursuant to DRL 200. Known as a conversion divorce, a filing under DRL 170(5) seeks to convert the judgment of separation into a judgment of divorce. Substantial and not literal compliance with the terms of the judgment of separation is required. In King v King 134 Misc.2d 27, (Supreme Court, Kings County, 1986) the husband's divorce action was dismissed when it was shown that he failed to substantially comply with the terms of his judicial separation.

A divorce granted under this section cannot be considered true no fault, as fault has already been determined in the underlying judicial separation.

6. Living apart to separation agreement for one year

DRL 170(6) Living separate and apart pursuant to a written agreement of separation, subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded, for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such agreement.

Also known as a conversion divorce, this cause of action contains two elements. First is there is a valid separation agreement, and second is the parties have substantially complied with its terms.

A valid separation agreement must be executed in the form which is required for a deed to be recorded, which means the agreement must be signed and acknowledged by the parties; merely notarizing the agreement is insufficient. See Matisoff v Dobi 90 N.Y.2d 127 (Court of Appeals, 1997). In Matisoff, the Court of Appeals held that an unacknowledged marital agreement is unenforceable, despite hearing testimony that both parties signed the agreement.

The statute requires substantial compliance with the agreement, which allows some degree of leeway and prevent the divorce from being denied due to trivial noncompliance. See Stern v Stern 114 A.D.2d 408 (2nd Dept. 1985). But when non compliance is due to the fault of the other side, the court may disallow the defense and grant the divorce. See Nahl v Nahl 148 A.D.2d 898 (3rd Dept. 1989)

Living Apart Pursuant to a separation agreement for one year or more is one way to obtain a divorce in New York without either party being at fault.

7. No fault: irretrievable breakdown for at least six months

DRL 170(7) The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath.

For any divorce action filed after October 12, 2010, grounds may be true no fault under section DRL 170(7). This provision allows a divorce to be granted without a finding that either spouse is at fault. Instead, the party seeking the divorce must simply allege that the marriage has irretrievably broken down for six months or more. However, the court may not grant the divorce under no fault until all other ancillary issues are resolved.

The courts were initially split in interpreting whether this statute allowed the claimed breakdown to be challenged. In Strack v. Strack, the Supreme Court of Essex County held that a jury trial under DRL 173 is still permitted to contest DRL 170(7) grounds, reasoning that DRL 173 was not amended when Domestic Relations Law 170(7) was adopted. However, in A.C. v. D.R., the Supreme Court of Nassau County reached a contrary conclusion, holding that it was the legislative intent to remove any defense to a divorce brought under this section. However, the court is not authorized to grant a motion for summary judgment on grounds pursuant to CPLR 3212 even under no fault, since the statute precludes the court granting the divorce until all other issues are resolved.

This split was resolved in December 2012. In Palermo v. Palermo 100 AD3d 1453 (4th Dept. 2012) the Appellate Division Fourth Dept. affirmed the trial court's decision which held there is no right to a trial under New York's irretrievable breakdown law.

Nor will the statute of limitations act as a defense to any action brought under DRL 170(7). In Tuper v. Tuper, 98 AD3d 55 (4th Dept. 2012) the parties were married in 1973 and were separated in 1996. The Appellate Division denied the defense of the statute of limitations. In doing so, the Court held that while the statute of limitations of five years does apply, the breakdown of the marriage continues on an ongoing basis when determining the starting date for the five year limitations under DRL 210. The Court held the same logic in Covington as to incarceration under DRL 170(3) should also apply to irretrievable breakdown of the marriage under DLR 170(7).

8. Consequences of DRL 170(7) not being a cause of action

Eliminating the right to contest the no fault grounds of DRL 170(7) has caused other unintended consequences as the remaining sections of the Domestic Relations Law has not been updated to be consistent with the amendments to DRL 170. When the courts found no defense exists to DRL 170(7), it ceased being a cause of action under the holding of Stancil v Stancil. While this removed the right to contest grounds, it posed an unintended problem for residency. A cause of action requires that a court determine if a claim was proven or not, and by removing this aspect from DRL 170(7), it ceased to be a cause of action, even though it remained a ground for divorce. But since two subdivisions of DRL 230 are based on the cause of action for a divorce occurring in New York, a divorce based on DRL 170(7) cannot be used as a cause of action to maintain residency under DRL 230. See Stancil v Stancil 2015 NY Slip Op 25045.

About J. Douglas Barics
J. Douglas Barics is a divorce lawyer located in Commack NY who regularly represents individuals in all divorce and family law matters.

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