All divorces must be predicated upon a ground in DRL 170. The grounds are: 170(1) Cruel and Inhumane Treatment, 170(2) Abandonment, 170(3) Confinement of Defendant in Prison For a period in excess of three (3) years, 170(4) Adultery, 170(5) Living Separate and Apart Pursuant to a Judgment of Separation under DRL 200, 170(6) ) Living Separate and Apart Pursuant to a Separation Agreement.
In 2010 NY added 170 (7) which now allows for the ground of irreconcilable differences also known as “No Fault” Divorce.
A divorce, unlike other actions involving domestic relationships and family ends a marriage. This involves dividing marital property using the equitable distribution method described more fully in its own section. Marital property quite simply is property acquired during the marriage that isn’t exempt such as a personal injury award or an inheritance. Sometimes this can be tricky. It’s possible for a person to own a house before he/she is married and then after the marriage, ads an addition to the house or rehabs the house. In such matters, the house may not be marital property but the addition would be, or the extra value attributed to the house as per the rehabilitation of the premises.
A big issue of concern for most people when considering a divorce is their IRA, 401K, or pension. Those financial accounts are considered marital property, at least the portion that accrued during the tenancy of the marriage. When only one of the two parties has a retirement account, the portion that accrued during the tenancy of the marriage is subject to equitable distribution. Since no one knows how long they are going to live, most people have an actuarial figure out how much money should be distributed at each interval and have it put in a court order known as a Qualified Domestic Relation Order known as a QDRO. When both parties have a retirement account, both accounts are subject to equitable distribution. Sometimes people have a deferred compensation plan as well. That is also marital property subject to equitable distribution.