Before 20l0, when New York State became the last state in the United States to pass a “no fault” divorce law, a husband or wife wishing to be divorced was required to prove that his or her spouse engaged in behavior that the law deemed sufficient to grant the complaining spouse (the “plaintiff”) a divorce against the misbehaving spouse (the “defendant”). These grounds included the cruel and inhuman treatment of the defendant by the plaintiff; the abandonment of the plaintiff by the defendant for a period of at least one (l) year; confinement of the defendant in prison for a period of at least three (3) consecutive years; adultery; or living apart pursuant to a judgment of separation for a period of at least one (l) year.
Additionally, if the husband and wife had entered into a separation agreement, and lived apart pursuant to it for at least one (l) year, a divorce could be granted on that ground.
The addition of the “no fault” ground for divorce in 20l0, that is, the irretrievable breakdown of the parties’ relationship for a period of at least six (6) months, did not eliminate these “fault” grounds for divorce from the law. They are still available.
It is generally not, however, a prudent financial or emotional decision to pursue a “fault” ground for divorce, now that a “no fault” divorce is possible. Except in extremely rare circumstances, the finding of marital fault against one spouse does not convey to the other spouse any financial or custodial benefits, and the pursuit of a “fault” ground and the evidence to prove it can be costly in both time and money.