New York code § Article 11. § 200 Separation
Action for separation. An action may be maintained by a husband or wife against the other party to the marriage to procure
a judgment separating the parties from bed and board, forever, or for a limited time, for any of the following causes:
1.
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.
2. The abandonment of the plaintiff by the defendant.
3. The neglect or refusal of the defendant-spouse to provide for the
support of the plaintiff-spouse where the defendant-spouse is chargeable with such support under the provisions of section
thirty-two of this chapter or of section four hundred twelve of the family court act.
4. The commission of an act of adultery
by the defendant; except where such offense is committed by the procurement or with
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the connivance of the plaintiff or where there is voluntary cohabitation
of the parties with the knowledge of the offense or where action was not commenced within five years after the discovery
by the plaintiff of the offense charged or where the plaintiff has also been guilty of adultery under such circumstances
that the defendant would have been entitled, if innocent, to a divorce, provided that adultery for the purposes of this subdivision
is hereby defined as the commission of an act of sexual intercourse, oral sexual conduct or anal sexual conduct, voluntarily
performed by the defendant, with a person other than the plaintiff after the marriage of plaintiff and defendant. Oral sexual
conduct and anal sexual conduct include, but are not limited to, sexual conduct as defined in subdivision two of section
130.00 and subdivision three of section 130.20 of the penal law.
5. The confinement of the defendant in prison for a period
of three or more consecutive years after the marriage of plaintiff and defendant.
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New York code § Article 10-170 Grounds
Action for divorce. An action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties
and dissolving the marriage on any of the following grounds:
(1) 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.
(2) The abandonment of the plaintiff by the defendant
for a period of one or more years. (3) The confinement of the defendant in prison for a period of three or more consecutive
years after the marriage of plaintiff and defendant. (4) The commission of an act of adultery, provided that adultery for
the purposes of articles ten, eleven, and eleven-A of this chapter, is hereby defined as the commission of an act of sexual
intercourse, oral sexual conduct or anal sexual conduct, voluntarily performed by the defendant, with a person other than
the plaintiff after the marriage of plaintiff and defendant. Oral sexual conduct and anal sexual conduct include, but are
not limited to, sexual conduct as defined in subdivision two of section 130.00 and subdivision three of section 130.20 of
the penal law.
(5) The husband and wife have lived 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, and satisfactory proof has been submitted by the plaintiff
that he or she has substantially performed all the terms and conditions of such decree or judgment.
(6) The husband and wife
have lived separate and apart pursuant to a written agreement of separation, subscribed by the parties thereto and acknowledged
or proved in the form required to entitle a deed to be recorded, for a period of one or more years after the execution of
such agreement and satisfactory proof
has been submitted by the plaintiff that he |
or she has substantially performed all the terms and conditions
of such agreement. Such agreement shall be filed in the office of the clerk of the county wherein either party resides. In
lieu of filing such agreement, either party to such agreement may file a memorandum of such agreement, which memorandum shall
be similarly subscribed and acknowledged or proved as was the agreement of separation and shall contain the following information:
(a) the names and addresses of each of the parties, (b) the date of marriage of the parties, (c) the date of the agreement
of separation and (d) the date of this subscription and acknowledgment or proof of such agreement of separation. *
(7) The
relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one
party has so stated under oath. No judgment of divorce shall be granted under this subdivision unless and until the economic
issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support,
the payment of counsel and experts' fees and expenses as well as the custody and visitation with the infant children of the
marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce. Grounds
include:
 Cruel and inhuman treatment
Abandonment for a continuous period
of one year or more
Imprisonment for more than three
years subsequent to the marriage
Adultery
Conversion of a separation judgment
Conversion of a written and acknowledged
separation agreement after living separate and apart for more than one year
The relationship between husband
and wife has broken down irretrievably for a period of at least six months
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New York code § 140 Annulment
Action for judgment declaring nullity of void marriages or annulling voidable marriage.
(a) Former husband or wife living.
An action to declare the nullity of a void marriage upon the ground that the former husband or wife of one of the parties
was living, the former marriage being in force, may be maintained by either of the parties during the life-time of the other,
or by the former husband or wife.
(b) Party under age of consent. An action to annul a marriage on the ground that one or
both of the parties had not attained the age of legal consent may be maintained by the infant, or by either parent of the
infant, or by the guardian of the infant's person; or the court may allow the action to be maintained by any person as the
next friend of the infant. But a marriage shall not be annulled under this subdivision at the suit of a party who was of
the age of legal consent when it was contracted, or by a party who for any time after he or she attained that age freely
cohabited with the other party as husband or wife.
(c) Party a mentally retarded person or mentally ill person. An action
to annul a marriage on the ground that one of the parties thereto was a mentally retarded person may be maintained at any
time during the life-time of either party by any relative of a mentally retarded person, who has an interest to avoid the
marriage. An action to annul a marriage on the ground that one of the parties thereto was a mentally ill person may be maintained
at any time during the continuance of the mental illness, or, after the death of the mentally ill person in that condition,
and during the life of the other party to the marriage, by any relative of the mentally ill person who has an interest to
avoid the marriage. Such an action may also be maintained by the mentally ill person at any time after restoration to a sound
mind; but in that case, the marriage should not be annulled if it appears that the parties freely cohabited as husband and
wife after the mentally ill person was restored to a sound mind. Where one of the parties to a marriage was a mentally ill
person at the time of the marriage, an action may also be maintained by the other party at any time during the continuance
of the mental illness, provided the plaintiff did not know of the mental illness at the time of the marriage. Where no relative
of the mentally retarded person or mentally ill
person brings an action to annul the marriage and the mentally ill person is not restored to sound mind, |
restored to sound mind, the court may allow
an action for that purpose to be maintained at any time during the life-time of both the parties to the marriage, by any
person as the next friend of the mentally retarded person or mentally ill person. (d) Physical incapacity. An action to annul
a marriage on the ground that one of the parties was physically incapable of entering into the marriage state may be maintained
by the injured party against the party whose incapacity is alleged; or such an action may be maintained by the party who
was incapable against the other party, provided the incapable party was unaware of the incapacity at the time of marriage,
or if aware of such incapacity, did not know it was incurable. Such an action can be maintained only where an incapacity
continues and is incurable, and must be commenced before five years have expired since the marriage.
(e) Consent by force,
duress or fraud. An action to annul a marriage on the ground that the consent of one of the parties thereto was obtained
by force or duress may be maintained at any time by the party whose consent was so obtained. An action to annul a marriage
on the ground that the consent of one of the parties thereto was obtained by fraud may be maintained by the party whose consent
was so obtained within the limitations of time for enforcing a civil remedy of the civil practice law and rules. Any such
action may also be maintained during the life-time of the other party by the parent, or the guardian of the person of the
party whose consent was so obtained, or by any relative of that party who has an interest to avoid the marriage, provided
that in an action to annul a marriage on the ground of fraud the limitation prescribed in the civil practice law and rules
has not run. But a marriage shall not be annulled on the ground of force or duress if it appears that, at any time before
the commencement of the action, the parties thereto voluntarily cohabited as husband and wife; or on the ground of fraud,
if it appears that, at any time before the commencement thereof, the parties voluntarily cohabited as husband and wife, with
a full knowledge of the facts constituting the fraud. (f) Incurable mental illness for five years. An action to annul a marriage
upon the ground that one of the parties has been incurably mentally ill for a period of five years or more may be maintained
by or on behalf of either of the parties to such marriage.
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New York code § 70 Custody
Habeas corpus for child detained by parent.
(a) Where a minor child is residing within this state, either parent may apply
to the supreme court for a writ of habeas corpus to have such minor child brought before such court; and on the return thereof,
the court, on due consideration, may award the natural guardianship, charge and custody of such child to either parent for
such time, under such regulations and restrictions, and with such provisions and directions, as the case may require, and
may at any time thereafter vacate or modify such order. In all cases there shall be no prima facie right to the custody of
the child in either parent, but the court shall determine solely what is for the best interest of the child, and what will
best promote its welfare and happiness, and make award accordingly. |
determine solely what is for the best interest of the
child, and what will best promote its welfare and happiness, and make award accordingly.
(b) Any order under this section which applies to rights
of visitation with a child remanded or placed in the care of a person, official, agency or institution pursuant to article
ten of the family court act or pursuant to an instrument approved under section three hundred fifty-eight-a of the social
services law, shall be enforceable pursuant to the provisions of part eight of article ten of such act, sections three hundred
fifty-eight-a and three hundred eighty-four-a of the social services law and other applicable provisions of law against any
person or official having care and custody, or temporary care and custody, of such child.
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New York code § Child Visitation
The parent who does not have physical custody has either:
reasonable rights of visitation,
a specified visitation
schedule, or
is limited to supervised visitation.
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rare cases may the non-custodial parent be denied visitation.
Usually, this is for very specific reasons such as severe substance abuse, history of domestic violence or lack of interest
in the child.
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New York code § Spousal support.
Maintenance. Alimony
a. Except where the parties have entered into an agreement pursuant to subdivision three of this part
providing for maintenance, in any matrimonial action the court may order temporary maintenance or maintenance in such amount
as justice requires, having regard for the standard of living of the parties established during the marriage, whether the
party in whose favor maintenance is granted lacks sufficient property and income to provide for his or her reasonable needs
and whether the other party has sufficient property or income to provide for the reasonable needs of the other and the circumstances
of the case and of the respective parties. Such order shall be effective as of the date of the application therefore, and
any retroactive amount of maintenance due shall be paid in one sum or periodic sums, as the court shall direct, taking into
account any amount of temporary maintenance which has been paid. In determining the amount and duration of maintenance the
court shall consider:
the income and property of the respective parties including marital property distributed pursuant to subdivision five of
this part;
the duration of the marriage and the age and health of both parties;
the present and future earning capacity of both parties;
the ability of the party seeking maintenance to become self-supporting
and, if applicable, the period of time and training necessary therefore;
reduced or lost lifetime earning capacity of the
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party seeking maintenance as a result of having foregone or delayed
education, training, employment, or career opportunities during the marriage;
the presence of children of the marriage in the respective homes of the parties;
the tax consequences to each party;
contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career
or career potential of the other party;
the wasteful dissipation of marital property by either spouse;
any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
the loss of health insurance benefits upon dissolution of the marriage; and
any other factor which the court shall expressly find to be just and proper.
b. In any decision made pursuant to
this subdivision, the court shall set forth the factors it considered and the reasons for its decision and such may not be
waived by either party or counsel.
c. The court may award permanent maintenance, but an award of maintenance shall terminate
upon the death of either party or upon the recipient's valid or invalid marriage, or upon modification pursuant to paragraph
(b) of subdivision nine of section two hundred thirty-six of this part or section two hundred forty-eight of this chapter.
d. In any decision made pursuant to this subdivision the court shall, where appropriate, consider the effect of a barrier
to remarriage, as defined in subdivision six of section two hundred fifty-three of this article, on the factors enumerated
in paragraph a of this subdivision.
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New York code § Disposition
of property in certain matrimonial actions. (Equitable Distribution)
a. Except where the parties have provided in an agreement for the disposition of their property pursuant to subdivision
three of this part, the court, in an action wherein all or part of the relief granted is divorce, or the dissolution, annulment
or declaration of the nullity of a marriage, and in proceedings to obtain a distribution of marital property following a
foreign judgment of divorce, shall determine the respective rights of the parties in their separate or marital property,
and shall provide for the disposition thereof in the final judgment.
b. Separate property shall remain such.
c. Marital property
shall be distributed equitably between the parties, considering the circumstances of the case and of the respective parties.
d. In determining an equitable disposition of property under paragraph c, the court shall consider:
1. the income and property
of each party at the time of marriage, and at the time of the commencement of the action;
2. the duration of the marriage
and the age and health of both parties;
3. the need of a custodial parent to occupy or own the marital residence and to
use or
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own its household effects;
4. the loss of inheritance
and pension rights upon dissolution of the marriage as of the date of dissolution;
5. the loss of health insurance benefits upon dissolution
of the marriage;
6. any award of maintenance under subdivision six of this part;
7. any equitable claim to, interest in,
or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including
joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career
or career potential of the other party;
8. the liquid or non-liquid character of all marital property;
9. the probable
future financial circumstances of each party;
10. the impossibility or difficulty of evaluating any component asset or any
interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact
and free from any claim or interference by the other party;
11. the tax consequences to each party; 12. the wasteful dissipation
of assets by either spouse;
13. any transfer or encumbrance made in contemplation of a matrimonial action without fair
consideration;
14. any other factor which the court shall expressly find to be just and proper.
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New York code § Separation agreement
An agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action
if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle
a deed to be recorded. Notwithstanding any other provision of law, an acknowledgment of an agreement made before marriage
may be executed before any person authorized to solemnize a marriage pursuant to subdivisions one, two and three of section
eleven of this chapter. Such an agreement may include
a contract to make a testamentary provision of any kind, or a waiver
of any right to elect against the provisions of a will;
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provision
for the ownership, division or distribution of separate and marital property; provision
for the amount and duration of maintenance or other terms and conditions of the marriage relationship, subject to the provisions
of section 5-311 of the general obligations law, and provided that such terms were fair and reasonable at the time of the
making of the agreement and are not unconscionable at the time of entry of final judgment; and
provision for the custody,
care, education and maintenance of any child of the parties, subject to the provisions of section two hundred forty of this
article. Nothing in this subdivision shall be deemed to affect the validity of any agreement made prior to the effective
date of this subdivision.
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New York code § Automatic orders
a. Except as provided in subdivision five of this part, the provisions of this part shall be applicable to actions for
an annulment or dissolution of a marriage, for a divorce, for a separation, for a declaration of the nullity of a void marriage,
for a declaration of the validity or nullity of a foreign judgment of divorce, for a declaration of the validity or nullity
of a marriage, and to proceedings to obtain maintenance or a distribution of marital property following a foreign judgment
of divorce, commenced on and after the effective date of this part. Any application which seeks a modification of a judgment,
order or decree made in an action commenced prior to the effective date of this part shall be heard and determined in accordance
with the provisions of part A of this section.
b. With respect to matrimonial actions which commence on or after the effective
date of this paragraph, the plaintiff shall cause to be served upon the defendant, simultaneous with the service of the summons,
a copy of the automatic orders set forth in this paragraph. The automatic orders shall be binding upon the plaintiff in a
matrimonial action immediately upon the filing of the summons, or summons and complaint, and upon the defendant immediately
upon the service of the automatic orders with the summons. The automatic orders shall remain in full force and effect during
the pendency of the action, unless terminated, modified or amended by further order of the court upon motion of either of
the parties or upon written agreement between the parties duly executed and acknowledged. The automatic orders are as follows:
1. Neither party shall sell, transfer, encumber, conceal, assign, remove or in any
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way dispose of, without
the consent of the other party in writing, or by order of the court, any property (including, but not limited to, real estate,
personal property, cash accounts, stocks, mutual funds, bank accounts, cars and boats) individually or jointly held by the
parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney's
fees in connection with this action.
2. Neither party shall transfer, encumber, assign,
remove, withdraw or in any way dispose of any tax deferred funds, stocks or other assets held in any individual retirement
accounts, 401K accounts, profit sharing plans, Keogh accounts, or any other pension or retirement account, and the parties
shall further refrain from applying for or requesting the payment of retirement benefits or annuity payments of any kind,
without the consent of the other party in writing, or upon further order of the court; except that any party who is already
in pay status may continue to receive such payments thereunder.
3. Neither party shall incur unreasonable debts hereafter,
including, but not limited to further borrowing against any credit line secured by the family residence, further encumbrancing
any assets, or unreasonably using credit cards or cash advances against credit cards, except in the usual course of business
or for customary or usual household expenses, or for reasonable attorney's fees in connection with this action.
4. Neither
party shall cause the other party or the children of the marriage to be removed from any existing medical, hospital and dental
insurance coverage, and each party shall maintain the existing medical, hospital and dental insurance coverage in full force
and effect.
5. Neither party shall change the beneficiaries of any existing life insurance policies, and
each party shall maintain the existing life insurance, automobile insurance, homeowners and renters insurance policies in
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The Divorce statutes in New York that
appear here may not include all provisions of Family Law. Some
redacting has occurred. You should consult NY code or a New York divorce attorney.
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