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How do fault grounds and no-fault grounds for divorce differ?

Deciding that it would be best to end a marriage is usually not a decision someone makes lightly. If you have decided that it is time to end your marriage, you probably have your own reasons for reaching that decision. However, when you file for divorce, you must select a legally valid reason, called a ground, for your action.

New York recognizes seven grounds for divorce, and you will not be granted a divorce without selecting one of them. Most of these grounds are fault-based. However, since 2010, New York has also recognized one no-fault ground.

Fault-based grounds

If you choose to file for divorce using a fault-based ground, you would be blaming the reason for the divorce on your spouse. Using a fault-based ground for divorce may, in some circumstances, put you in a better position regarding child custody, spousal support or division of assets. However, you must be able to prove any fault-based ground that you use. If you do not successfully prove your ground or if your spouse successfully defends against your accusations, a court may not allow you to divorce.

The six fault-based grounds that New York recognizes, include:

  • Cruel treatment
  • Abandonment for at least one year
  • Confinement in prison for three or more years
  • Adultery
  • Living apart for at least a year according to a judgement of separation
  • Living apart for at least a year according to a legal separation agreement

No-fault ground

Using a no-fault ground when filing for divorce can be a little different than using a fault-based ground. The no-fault ground recognized in New York is that a marriage has been irretrievable broken for at least six months before a spouse filed for divorce.

With a no-fault ground, there may be little for you to prove and your spouse may likely have no way to defend against the ground. However, you must swear under oath that your marriage has been broken beyond repair for at least six months. Also, you and your spouse must reach a resolution regarding division of property, spousal support, child support and child custody before you are granted a divorce. You and your spouse may be able to reach an agreement regarding these issues on your own, or a court may be able to decide for you.

Every person’s situation is unique, and different grounds are appropriate under different circumstances. Although you have probably put much thought into your personal reasons for divorce, you must also carefully consider which ground is most appropriate for your unique situation.

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