MATRIMONIAL LAW

Uncontested Divorce

An “uncontested” divorce, as opposed to a “contested” divorce, is when both spouses agree with respect to all of the issues concerning the dissolution of their marriage.  Both must want the divorce and agree on all of the issues relating to the specific grounds for the divorce, including child custody, visitation rights, child support, and spousal maintenance, as well as an equitable division of the marital property. If all issues can be resolved before the divorce is filed, neither party must appear in court, and the divorce can be filed as “uncontested” from inception.

Grounds for Divorce in New York State

The “grounds” for a divorce are legally recognized reasons for the dissolution of a marriage. In New York, a Judgment of Divorce may be granted based upon one or more of the following recognized causes of action:

Adultery, or
Actual abandonment (12 months or longer), or
Constructive abandonment (12 months or longer), or
Cruel and inhuman treatment, or
Conversion of a written and acknowledged separation agreement after living separate and apart for more than one (1) year, or
The marriage has broken down irretrievably for a period of at least six (6) months. As of October 14, 2010, New York State began to recognize “no-fault” actions for divorce based upon the “irretrievable breakdown of a marriage” for a period of more than six (6) months.

Annulment

A Civil Annulment is a legal procedure for declaring a marriage null and void.  An “annulment” differs from a divorce in that a divorce terminates a legal status, whereas an annulment establishes that a marital status never existed.

Annulment Grounds in New York State

The “grounds” for an annulment are legally recognized reasons for the nullity of a marriage. In New York State, a Judgment of Annulment may be granted based upon one or more of the following recognized causes of action:

If either spouse is incurably incapable of having sexual intercourse, the marriage may be annulled.
Both parties must be over the age of 18 years. A marriage between persons under the age of 18 years may be annulled, at the discretion of the Court, if the spouse under 18 wants an annulment.
If, after marriage, either partner becomes incurably insane for five years or more, the marriage can be annulled. However, the sane spouse may be required to support the insane spouse for life.
The parties must knowingly consent to the marriage. It may be voided if either spouse consents to marry as a result of the force or duress of the other spouse, or if either spouse cannot understand the nature, effect, and consequences of marriage.
The marriage may be annulled where the consent was obtained by fraud, provided the fraud was such that it would have deceived an ordinarily prudent person and was material to obtaining the other party’s consent. The fraud must be such as to go to the essence of the marriage contract. Only the injured spouse can obtain the annulment on lack of consent.