Many states allow no-fault divorces or divorces for “irreconcilable reasons.” That means that both parties agree that they want a divorce because they don’t get along. The court doesn’t ask what they argue about. However, in New York a person is only allowed a divorce for a limited number of reasons.

The closest thing New York has to a no-fault divorce is a divorce based upon a legal separation agreement. That is, a husband and wife have lived apart for at least a year pursuant to a written separation agreement. The separation agreement must contain certain language and is best written by an experienced lawyer. Living apart for at least a year without such a written agreement is not grounds for divorce.

All other grounds for divorce require the party not at fault or the innocent party to commence an action for divorce based upon the wrongful behavior of the other spouse.

The most common ground for divorce is abandonment. The person who left the marital residence must be gone for at least the past year. There are two variations of abandonment, one is called lockout. In a lockout the wrongdoer has locked the innocent party out of the home for at least the past year. The other variation is constructive abandonment. Constructive abandonment means that the wrongdoer, without justification, has refused to have sexual relations with the innocent spouse.

Another widely used ground for divorce is inhuman treatment or mental cruelty. The acts of mental cruelty must have taken place less than five years from the date of the complaint and must have been so bad that it would be unsafe or improper for the innocent person to continue to live with the wrongdoer. Examples of inhuman treatment could be any physical abuse, verbal abuse, staying out of the marital residence overnight, gambling household money, spending household money on drugs, or false accusation of an affair. A long-term marriage or one with children would require a higher degree of wrong doing, although physical abuse would always be a valid reason.

There are other grounds for divorce, however they are seldom used. Those grounds are adultery, court judgment of separation, and imprisonment after marriage for at least three years.