When a couple decides to get divorced, the spouses are required by law to provide an acceptable reason to the state for ending the marriage. This reason is called a “ground.” Over the years, the courts have enacted laws to govern what kinds of reasons are acceptable grounds for divorce.
The most common ground used today is irreconcilable differences. This essentially means that the relationship between the married parties has broken down to the point of no longer being salvageable. The other available grounds are adultery, extreme cruelty, separation and desertion.
To file for divorce, a summons must be purchased and filed with the county clerk’s office. The Plaintiff (the person filing for divorce) and the Defendant (the spouse against whom the complaint is filed) must be personally served with the summons, which is done by having it delivered to the individual by a private process server who is a resident of New York State, over eighteen years of age and CANNOT be a party to the action. The spouse must then be notified of the filing of the complaint and given 21 days to respond, or “answer.”
If a response is filed, both spouses must make initial disclosures to each other, including a financial declaration. At that time the court will schedule a case conference and a final hearing date. Depending on the complexity of the case, it may take some time to get a date set for the final hearing.
During the course of the case the court will rule on issues such as property division, custody and child support. In many cases, the judge will rely on the facts presented in the petition and evidence submitted at the trial. The court will also rule on issues such as alimony, if applicable, based on the length of the marriage, the need for spousal support and the ability of each spouse to support themselves.
Some states, such as California, have decided to stop considering fault in property division and alimony decisions. However, some states still use fault-based reasons for divorce, such as adultery and other grounds. It is important to understand the different reasons for divorce and to be sure that the ground chosen meets the needs of the family.
A divorce cannot be granted until the spouses have lived separately for one year. In addition, there must be no sexual intercourse during this time period. This ground can be difficult to prove since the spouses must be honest with each other when completing the initial disclosure forms and providing proof of living apart.
A divorce can be granted on the basis of mental illness if two specialty doctors testify that the spouse is incurably insane. The Defendant is usually institutionalized during this period of time and the Plaintiff must be certain that the spouse has been declared “incurable” by the judge. This is not an easy ground to prove, but if successful, it can be used to secure an order for permanent alimony and equitable distribution of assets.