Terminating a Marriage in NY: Legal Separation, Divorce, and Dissolution

Question 1

Does legal separation terminate a marriage?

Answer 1

No - it is simply court permission to live separate and apart and will affect collateral matters like money, custody, and property.

Question 2

Can a separation be temporary, permanent or either?

Answer 2

Either - courts can grant temporary or permanent separations.

Question 3

Can you get a jury trial for a legal separation?

Answer 3

No

Question 4

What are the five grounds available to get a legal separation?

Answer 4

1. cruel and inhuman treatment
2. abandonment
3. adultery
4. three consecutive years of imprisonment
5. failure to support

Question 5

What are the forms of constructive abandonment?

Answer 5

1. refusal to have sex (permanent and continuous)

2. permanent silent treatment

Question 6

What are the elements of abandonment?

Answer 6

1. voluntary departure by one spouse
2. that was not consented-to by the other
3. the departure was without justification (i.e. you can leave if you’re being battered)
4. and the person departing has no intent to return

Question 7

What are the four affirmative defenses to adultery?

Answer 7

1. Condonation - waiver by freely resuming co-habitation after learning of the adultery
2. Connivance - entrapment
3. Recrimination - unclean hands
4. Statute of Limitations - three years after discovering the adultery

Question 8

What are the fault grounds for divorce (4)?

Answer 8

1. cruel and inhuman treatment
2. abandonment for a continuous 1 year
3. adultery
4. three years of consecutive imprisonment
   * Note: failure to support is not a ground for divorce.

Question 9

What are the elements of a conversion divorce?

Answer 9

1. the couple first separates by decree or agreement
2. the couple lives separate and apart for one full year
3. at the end of that year, they can convert their separation into a final divorce.

Question 10

What are the requirements for a valid separation agreement?

Answer 10

1. in writing and notarized
2. freely made
3. filed with the court before a conversion divorce

Question 11

What events will terminate a separated couple’s ability to get a conversion divorce?

Answer 11

During the year they’re supposed to be separated the couple has sex with the intention of reconciling, unless they had a separation DECREE - in which case, sex is irrelevant.

Or - any material breach of the separation agreement will preclude the couple from getting a conversion divorce.

Question 12

What must be shown to qualify for no-fault divorce?

Answer 12

There has been an irretrievable breakdown of the marriage for a period of at least 6 months. Generally, they can do this by one spouse testifying to the above.

Question 13

After a spouse has testified that the marriage has been irretrievably broken down for at least 6 months - what must be done before the divorce is entered?

Answer 13

All collateral issues (money, custody, property) have been resolved.

Question 14

When can a party use “dissolution” to end a marriage?

Answer 14

When the other spouse has disappeared - it is effectively a determination that the spouse has died.

Question 15

How long must the spouse have disappeared for?

Answer 15

5 years “without any tidings.”

Question 16

What must you show to get a dissolution?

Answer 16

1. you have made a diligent search
2. that you have published a request that your spouse return for 3 consecutive weeks in an English-language newspaper, and
3. that you have lived in NY for at least 1 year or that the matrimonial domicile at disappearance was NY.

Question 17

When a person files a matrimonial action what happens to assets by operation of law?

Answer 17

All assets are frozen.

No sales, no concealment, no incurring unusual debts, no changes in insurance coverage.

Question 18

What are the obligations of parties in matrimonial cases regarding financial disclosures?

Answer 18

Both parties are obligated to make full financial disclosures.