Articles: Divorce and Matrimonial Law

Grounds for a Judicial Separation in New York under DRL 200

by J. Douglas Barics
Revised August 2019

1. New York Separation Grounds under DRL 200

An action for a judicial separation is defined as a matrimonial action under DRL 236 B (2)(a). This is a court proceeding and is distinct from a separation agreement made under DRL 236 B (3).

An action for a Judicial Separation is a case between two spouses which does not dissolve the marriage but seeks to establish a judgment of separation, officially declaring the spouses separate. In addition, most ancillary relief is available, including custody, parenting time, child support and spousal maintenance.

However, since the marriage is not dissolved in a separation action, equitable distribution is not available, as equitable distribution by definition, is available only when the status of the marriage is changed. This fundamental concept is reflected in DRL 236 B(5)(a), which does not list separation actions as one of the actions for which the Court may distribute property. Property distribution would be limited to relief under DRL 234, which gives a very narrow basis for relief, or a separate cause of action for the imposition of a Constructive Trust. Support proceedings were also available to wives only. Note that Courts were without authority to award marital property until 1980, and there was no concept of marital property prior to 1980.

Read More: Equitable Distribution in New York

Separation actions are largely a holdover from a bygone era when divorce grounds were far more limited. Prior to the reforms of 1966, the sole ground for divorce was adultery. Even after the 1966 reforms took effect the following year, grounds were still a large factor in divorce proceedings. Separation actions allowed some sort of alternate relief to those who did not have grounds under DRL 170.

Some remedies were available to a spouse in a failed or dead marriage, but who could not obtain a divorce. The first remedy was a wife could seek spousal support from her husband, similar to the right of a wife to obtain alimony under the old DRL 236. Prior to 1979, the right to support was only available to wives. Only after the Supreme Court case of Orr v Orr was support made gender neutral, and all states revised their alimony statutes to comply with the holding of Orr.

The second remedy was for a judicial separation, which was designed to provide some relief to a spouse in a dead marriage when they could not establish the sole ground for divorce. An action for a judicial separation was provided for in Domestic Relations Law 200, and if one or more of the grounds set forth there could be proven, a judge would issue a judgment declaring the parties legally separated and subject to the terms of the judgment of separation.

Today, actions for judicial separations are rare, but it remains as a valid matrimonial action.

The five grounds for judicial separation under DRL 200 are as follows:

2. Cruel and Unhuman Treatment: DRL 200(1)

DRL 200(1). Cruel and inhuman treatment such that the conduct endangers the physical or mental well being of the plaintiff rendering unsafe or improper for the plaintiff to live with the defendant.

The same standards that apply to a divorce filed under cruel and inhuman treatment would apply to a separation filed under DRL 200(1).

Read More: Divorce Grounds

3. Abandonment: DRL 200(2)

DRL 200(2)The abandonment of the plaintiff by the defendant.

Abandonment consists of four elements:

(a) voluntary separation of one spouse from the other

(b) an intent not to resume cohabitation

(d) no justification

The courts can constructively impose an abandonment claim based on the actions of the parties. See Diemer v. Diemer. The most common acts under which the courts constructs 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

Note that unlike DRL 170(2), which requires one year or more, there is no time requirement for a judicial separation under DRL 200(2).

4. Failure to provide support: DRL 200(3)

DLR 200(3) The neglect or refusal of the defendant-spouse to provide for the support of the plaintiff-spouse.

This is the only ground which does not have a mirror companion in a divorce action (DRL 170), and was perhaps the most common ground used for a separation action.

5. Adultery: DRL 200(4)

DRL 200(4) The commission of an act of adultery by the defendant. DRL 200(4).

Adultery means sexual intercourse. Like a divorce action, there are affirmative defenses to adultery which are (a) procurement (b) voluntary cohabitation after knowledge of the adultery; (c) within five years of the act of adultery (d) the plaintiff also committed adultery. These affirmative defenses are contained as part of DRL 200(4), as contrasted to a divorce action, where they are part of a separate section of the Domestic Relations Law (DRL 171). Under CPLR 4502, a spouse is incompetent to testify against the other spouse to prove adultery.

6. Imprisonment for three or more years: DRL 200(5)

DRL 200(5) The imprisonment of the defendant to prison for three or more consecutive years after the marriage.

In any action for a separation, the court is without authority to distribute marital property under DRL 236 B(5), since there is no change to the marital status. See Adamo v Adamo. However, the court is authorized to make every other award that is available in a divorce action, including custody, child support, maintenance, and payment of attorney and expert fees.

Maintenance does pose a procedural problem. DRL 236 B(6) authorizes the Court to award maintenance post divorce. Since an action under DRL 200 does not dissolve the marriage, it is unlikely that DRL 236(B)(6) would apply. DRL 236 B(5-a) gives a little more options, but as it is temporary support, it terminates upon issuance of the judgment. In all likelihood, the Court would base support on Family Court Act 412 to determine spousal support.

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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