Entries Tagged as 'New York'

New York Finally Embraces Irreconcilable Differences

New York state was the last state in the United States not to offer its citizens a no fault cause of action for divorce.  In August 2010, Governor David Paterson signed into law a bill which adds irreconcilable differences as a cause of action.  Property division, alimony, parenting and child support will need to be resolved before one party can swear under oath that the marriage has been irretrievably broken for 6 months.

Still no No-fault Divorce in NY

New York is the only state that does not have a no-fault cause of action for divorce.  A cause of action is what needs to be proven for your divorce action to prevail.  Most states have an irreconcilable differences cause of action, where one side does not have to prove the other side committed some unsavory act such as adultery or cruel treatment.

New York currently has four fault-based grounds for divorce:

  1. Adultery (which is still a criminal offense in the Empire State and hard to prove since you cannot testify against your spouse)
  2. Cruel and inhumane treatment (so as to affect the physical or mental health of the charging party such that it is not safe to remain in the marriage)
  3. Abandonment (one spouse intentionally leaves the other or refuses sexual relations for more than one year)
  4. Incarceration of one spouse for more than 3 years

In addition to these, the parties can agree in a written separation agreement to live apart for one year.  The agreement must contain the terms of the separation and ultimately the divorce.  This is the closest NY comes to no-fault.

Davis v. Davis, a recent NY case stated that mere social abandonment was not sufficient to prove constructive abandonment.  The wife in this case did not plead sexual abandonment.   The appellate court saw the pleadings as nothing more than a way to get around NY’s lack of a no-fault ground for divorce and that the courts would not usurp the legislature’s power to determine law for the people of New York.

Is Hiring a Detective to Spy on Your Spouse Harassment? In NY, no.

The case of Anonymous vs. Anonymous (so captioned by the court to protect the identities of all involved) recently asked and answered this question.  This case involved a wife who filed for divorce in November 2008.  The husband filed a counterclaim, alleging that the wife was having an affair.  In February 2009, the court entered a protective order requiring the husband to keep 1000 feet away from the wife’s residence and place of employment (excepting visitation and church attendance). In August 2009, the husband hired a private detective to spy on his wife.  The detective followed her to a hotel where the detective recorded proof that the wife was having an affair with their priest.  The matter became a little more public when the husband told another priest during a confessional of the affair, causing the church to launch an investigation (during which the DVD was given to church officials).  While the wife did not contest the affair, she asserted she was being harassed and that her husband had violated the protective order by hiring the detective.

Family Court Judge Debra J. Kiedaisch ruled that “under the circumstances, the hiring of the private investigator, in and of itself, was not an unlawful intrusion upon the rights of the wife secured by the order of protection.”  She said that the husband had the right to “gather evidence up to the date of trial in defense of the matrimonial action and in support of his own counterclaims.”

“If the husband had the wife followed and recorded … for the purpose of gathering embarrassing material to deliver to her employer with the intention to cause her to lose her employment,” that might rise to “conduct which alarms or seriously annoys another person, and serves no legitimate purpose” — second-degree harassment under New York law — Kiedaisch wrote.