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ALICE IN LEGALAND
ANSWERS A DIVORCE QUESTION

Question: My spouse and I would like to divorce but are still friends. We do not live together anymore and would like to obtain a friendly no-fault divorce. I always read in the tabloids about the movie stars in California obtaining divorces based on irreconcilable differences. Can we do this in New York State?

Answer: Unfortunately, New York State does not present the option of a "no-fault" divorce. All divorces must have grounds. Sufficient grounds for divorce are adultery, actual or constructive (withholding sex) abandonment, imprisonment, separation plus a year living apart, and cruel and inhuman treatment.

Lawyers, being the clever people we are, have devised two ways to get a divorce when both parties want one. The first option is known as a conversion divorce and is based upon the parties living separate and apart for one year after a separation agreement is signed. (No matter how long you have lived apart, the period does not begin running until a separation agreement is executed.). After one year, either Party may ask the Court to "convert" the separation into a divorce. If the both spouses have substantially complied with the terms of the separation agreement, the request will be granted. This method is usually used when the parties have children or own property together to make sure any resulting issues have been resolved.

The second option is known as a default or uncontested divorce. One Party sues the other asserting a grounds and the other Party agrees in advance not to respond, thus defaulting in the action and allowing the court to grant a divorce to the petitioning spouse. These divorces are usually pursued on the grounds of cruel and inhuman treatment because it is the most generic, easiest to prove and requires no third Party involvement. However, the complaint must contain actual allegations of cruel and inhuman treatment which may offend the spouse with whom you wish to remain friends. If s/he has tough skin and you have no children or property together, this is the fastest and least expensive way to divorce in New York State.