Divorce

Divorce

Divorce and annulments are the two means which can dissolve a marriage. Each require a lawsuit to be filed in Supreme Court which must allege one or more of the recognized grounds which would authorize the court to issue a judgment. The grounds for either an annulment or divorce only go to whether the marriage itself may be dissolved. All other issues such as equitable distribution, custody, child support and spousal support are considered "ancillary" relief and do not require anything more than to be listed alongside the grounds to terminate the marriage.

Divorce and Annulments are only two of seven types of matrimonial actions. The complete list of all matrimonial actions is found in DRL 236 B (2)(a), and are as follows:

• Annulment or dissolution of a marriage
• Divorce
• Separation
• Declaration of the nullity of a void marriage
• Declaration of the validity or nullity of a foreign judgment of divorce
• Declaration of the validity or nullity of a marriage
• Proceedings to obtain maintenance or a distribution of marital property following a foreign judgment of divorce.

Divorce

The seven grounds for divorce are found in DRL 170. If for any reason one or more of these grounds cannot be shown, there is no authority to obtain a divorce.  They are:

• Cruel and inhumane treatment. DRL 170(1)
• Abandonment for one year or more. DRL 170(2)
• Confinement to a prison for three years or more. DRL 170(3)
• Adultery. DRL 170(4)
• Living apart for one year or more pursuant to a judgment of separation. DRL 170(5)
• Living apart for one year or more pursuant to a separation agreement. DRL 170(6)
• An irretrievable breakdown of the marriage for at least six months. DRL 170(7)

 

Read More: The Grounds for Divorce

 

Annulments

The six grounds for an annulment are found in DRL 140. Some marriages are void from the inception while others are voidable by a judgment of annulment

• Former spouse still living is a void marriage. DRL 140(a)
• A party under the age of consent may be annulled. DRL 140(b)
• Mental retardation or mental illness may be annulled. DRL 140(c)
• Physical incapacity may be annulled DRL 140(d)
• Consent by force, duress, or fraud DRL 140(e)

 

Read More: The Grounds for Annulment

 

Separation

The five grounds for a judicial separation are found in DRL 200.

• Cruel and inhuman treatment. DRL 200(1)
• Abandonment. DRL 200(2)
• Failure to provide support. DRL 200(3)
• Adultery DRL 200(4)
• Confinement to a prison for three years or more DRL 200(5)

Equitable Distribution is not available in a separation action, as the marriage remains in tact. Absent a dissolution of a marriage, the court is without authority to dispose of marital property.

 

Declaration of the Nullity of a Void Marriage

There is no specific ground for bringing an action to declare a void marriage a nullity outside those listed in DRL 140. If there is another basis to have a marriage declared void, the process is to seek a declaratory judgment.

 

Declaration of the validity or nullity of a foreign judgment of divorce

When there is a foreign judgment of divorce and there is a question as to whether it is valid or not, an action for a declaratory judgment may be brought to obtain a New York judgment making this determination

 

Declaration of the validity or nullity of a marriage

When there is a question if a marriage is valid or not, an action for a declaratory judgment to have the court make this determination may be brought

 

Proceedings to obtain maintenance or a distribution of marital property following a foreign judgment of divorce

When the parties are divorced in a different state or country, a proceeding may be brought for either maintenance or equitable distribution

 

Residency Requirements

When the matrimonial action is a divorce, annulment, separation, or to seek a declaration of the nullity of a void marriage, the residency requirement of DRL 230 must be met.

 

Read More: Residency Requirements for Matrimonial Actions in New York 

 

Call for a Free Phone Consultation or to Schedule a Low Cost Office Consultation

If you have have additional questions, contact our office to learn about your legal options for protecting your rights in any matrimonial action. To get your free phone consultation or to make an appointment, call (631) 864-2600. Serving clients in Suffolk, Nassau, Queens, Manhattan, Bronx, Westchester. Rockland, Orange and other surrounding counties are accepted on a case by case basis.