If you want to divorce your spouse, the first thing you need to do is check your state’s residency requirements. You must be a resident of the state where you were married and where the divorce was filed. You also must be a resident of the state where your spouse lives, or where you have lived together as husband and wife for at least two years before filing. This is important because it will affect property division and alimony.
In the past, at fault divorce was the only way to end a marriage, but New York and most other states have now moved towards no-fault divorces. However, to get a no-fault divorce you must still prove the relationship between the parties has irretrievably broken down, and that the reasons for this breakdown do not include any of the seven at fault grounds.
Adultery is a common at-fault ground for divorce and involves the claim that your spouse committed sexual misconduct with someone other than you. This is defined in most states as any kind of sex with anyone other than your spouse. However, a court must believe that the infidelity is serious enough to justify a divorce.
Cruel and inhuman treatment is another at-fault ground for divorce and refers to any behavior that is considered abusive, either physically or emotionally. This is not a ground that a Judge will take lightly; he or she will be looking for specific incidents of cruelty that would lead to the conclusion that it is unsafe and inadvisable for the Plaintiff to continue living with the Defendant.
Generally, a Judge will not allow you to divorce on this ground if your spouse has not been properly notified and served with the complaint. This includes situations where your spouse has moved without telling anyone of their new address, or has left the country. In these cases, you must attempt to serve your spouse through other means such as a notice in the newspaper.
You can also divorce on the grounds that your spouse is incurably insane, but this will require the testimony of two or more psychiatrists who are prepared to testify that your spouse’s condition is permanent and incurable. You will also be required to pay your spouse’s legal fees for this action.
One of the more unusual but possible grounds for divorce is that you and your spouse have been living apart under a valid separation agreement for one year or more. This ground is not as easy to establish as the other no-fault divorce grounds and requires that a Judge actually approves the terms of the agreement and that the parties have substantially complied with its terms. There are also several other ground-based reasons for divorce, but these must be reviewed in conjunction with the specific laws of your state. An experienced attorney can help you understand these options and determine if any of them will work for your situation. They will also explain what your options are with regard to alimony and other issues that may arise in your case.