A divorce terminates the marital relationship between spouses. The Domestic Relations Law provides several legal bases, or “grounds,” upon which a court may grant a divorce. The party seeking a divorce has to prove that there are grounds for divorce before a court can grant a divorce. Historically, proving grounds for divorce could be, and too often was, a legal challenge that resulted in some people being stuck in a dead marriage, or worse, an abusive one.

New York was the last state to adopt “no-fault” divorce. In 2010, the Domestic Relations Law was amended with the addition of a new paragraph that states that a court may grant a divorce where it is shown that “the relationship between husband and wife has broken down irretrievably for a period of at least six months.” The proof required to show this is that “one party has so stated under oath.” This can be done by a simple affidavit. There no longer is a requirement that the parties live separate and apart for a year or have a separation agreement for more than a year. In fact, today some couples get divorced while they still are living together.

The irretrievable breakdown of a marriage provides a legal basis for a divorce, but a court cannot issue a judgment of divorce unless and until the issues of equitable distribution of marital property, spousal maintenance, child custody, child support as well as counsel and experts’ fees are resolved by the parties, or determined by the court.

Although the Domestic Relations Law was amended with the no-fault grounds for divorce, the other legal grounds were not abolished. Hence, the law still includes cruel and inhuman treatment, abandonment, imprisonment, adultery and living apart pursuant to separation agreement as valid grounds for divorce. Sometimes a plaintiff will allege one of these other grounds, such as adultery or cruel and inhuman treatment. This typically is done as a commentary on the defendant. If the matter should reach trial a judge will not consider these sour grapes grounds if the no-fault grounds are alleged. These sour grapes issues like adultery as marital fault have no place in the analysis of the economic issues presented in a divorce.

Nevertheless, economic fault is an issue that can be considered at trial in the analysis of the economic issues presented. These include the wasteful dissipation of marital assets and incurring debts that did not benefit the marriage. So, it may not matter that the husband had an affair with the wife’s best friend and slept with her in the marital bed. But, if he met his mistress at expensive hotels for their trysts and lavished her with gifts, this “economic fault” will be relevant.