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In New York, an action for divorce may be maintained by a husband or wife to procure a judgment of divorce dissolving the marriage on any of the following grounds:

• The cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant.
• The abandonment of the plaintiff by the defendant-constructive or physical- for a period of one or more years.
• The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.
• The commission of an act of adultery.
• The husband and wife 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, where satisfactory proof is submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree or judgment.
• The husband and wife living separate and apart pursuant to a written agreement of separation, subscribed by the parties and acknowledged or proved in the form required for a deed to be recorded, for a period of one or more years after the execution of such agreement where satisfactory proof is submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such agreement.

New York does not have “no-fault divorce” or divorce based on “irreconcilable differences”. Thus, in order to obtain a divorce, should the other party oppose the divorce, you must be prepared to prove that you are entitled to a divorce based upon one of the above stated grounds.

A “contested divorce” is any divorce which requires court intervention because the parties cannot agree on the terms of more or more aspects of the divorce including the grounds for divorce, the division of the marital property, custody and visitation, maintenance, or child support.

Equitable distribution, or the division of the marital property, does not occur until a divorce based on one of the above stated grounds is granted. Thus, if one party cannot establish grounds, the parties will remain tied economically if nothing else. Sometimes, one spouse will oppose a divorce for the simple reason that they do not want the marital assets divided. However, even where a divorce is not granted such that equitable distribution does not occur, a court still has the power to order that one party provide spousal support to the other party.

A court may award counsel fees to enable a spouse to prosecute or defend against an action for divorce. The determination is addressed to the discretion of the court and will depend on the circumstances of the case. On an application for attorney fees, a court will consider the nature and extent of the services rendered, the necessity for the services, the nature of the issues involved, the professional standing of counsel, including background and experience, the results achieved, the financial circumstances of the spouses, and a spouses' obstructionist tactics.

Where you and your spouse can work out the terms of your divorce without court intervention, it is possible to file an “uncontested divorce”. You and your spouse must agree as to the terms for child custody, visitation, child support, and the division of marital property. In such cases, my law firm can file all the necessary paperwork for you with the court and you and your spouse will probably never have to go to court at all.