This article is part of our series about "Divorce in New York". You can find the links to the other articles at the bottom of the page.
What Does "No Fault" Mean for Divorce?
Fault or no fault is one of the most important decisions you’ll need to make as you look into how to file for divorce in New York. In order to understand its no fault counterpart, let’s first discuss what exactly a fault divorce is.
As the name implies, fault divorce is when one spouse alleges legal wrongdoing on the part of the other spouse as a part of divorce proceedings.
Every state has a list of official divorce grounds, which can include fault grounds like adultery, domestic violence, and abandonment (including constructive abandonment, in which the abandoning spouse checks out of the marriage mentally while remaining physically present).
If you allege fault on the part of your spouse, you must then prove it in court. This means you can’t just suspect adultery, for example -- you have to have some kind of evidence to back it up, like a recording of your spouse admitting to having had sexual relations with someone else.
Just like in any other civil case taking place in New York Supreme Court, the spouse alleging adultery, abandonment, etc. is known as the plaintiff, and the spouse against whom the allegation is made is known as the defendant.
People may choose to allege fault for the satisfaction alone, but a successful fault divorce case can also impact the outcome of the divorce.
The party against whom fault is proven may be barred from collecting spousal support (a.k.a. spousal maintenance or alimony) from their monied spouse, but it generally will not impact child custody, child support, or the division of marital property, although there are rare exceptions.
Before you decide to file a fault-based divorce action, you will want to consult with a divorce lawyer about whether you have a case. There is a very high bar for proving fault, so you’re going to need some legal advice before you fill out the initial New York divorce papers.
While you’re making this decision, you won’t need to worry about retaliation from your spouse, because the attorney-client relationship guarantees confidentiality concerning anything you discuss privately with your divorce attorney.
Under New York no fault divorce law, on the other hand, you and your spouse will simply attest that your marriage has suffered an “irretrievable breakdown,” which is another way of saying “irreconcilable differences,” because sometimes a marriage just isn’t meant to be.
Conversion divorce, in which your legal separation is “upgraded” to divorce (maintaining your original separation agreement), is also considered no fault.
Likewise, a default judgment, in which the court grants you a divorce decree when your spouse fails to respond to you initiating a divorce, is also inherently no fault.
While going the no fault route is neutral when it comes to custody, child support to be paid to the custodial parent, property division, and spousal support/alimony, it’s still the best option for most people.
Why? Because it tends to make the divorce process a whole lot faster, simpler, and less expensive.
A fault divorce proceeding won’t necessarily drag on forever (like in cases of summary judgment), racking up those billable hours, but chances are it will.
Alleging fault will usually set the tone for a particularly adversarial contested divorce when your marriage might have otherwise been a good candidate for an uncontested divorce.
For those of you not in the know, an uncontested divorce is when you and your spouse develop your own custom separation agreement covering topics like child custody, child support, property division, and spousal support/alimony, as opposed to letting the court decide.
New York law has formulas for support, but they only act as guidelines for the court -- the law does not dictate exactly what you or your spouse will pay. In other words, the law won’t save you from getting caught up in the fight of your lives.
Beyond that, many people just feel that these decisions are just too personal to be left up to a court of law. Even if your marriage has been a total mess, you still might trust your spouse over a perfect stranger when it comes to working out a separation agreement.
Uncontested divorce comes with other major perks, too. For instance, you can generally only use an online divorce service if your divorce is uncontested, and if you’re like most people, you want to stay out of court as much as humanly possible.
To learn more about how online divorce works, click here: Online Divorce New York.
While this might sound like a no-brainer, there are a lot of other factors which contribute to the cost and duration of your New York divorce. You can learn more in these articles:
Now that you know the law, hopefully you’ll feel a little more confident making this decision. You can check out the court website for your county for more resources, as well.
Is New York a No Fault Divorce State?
In some states, fault divorce has been written out of the law entirely. New York, however, maintains a few fault grounds to choose from if you so desire.
Thus, while New York law does have a no fault option, it isn’t a no fault state. This flexible approach means you can end your marriage the way that works best for you.
New York No Fault Divorce Requirements
As discussed above, in order to end your marriage without alleging fault, you will need to attest to the “irretrievable breakdown” of your marriage. Your spouse, however, cannot prevent you from acquiring a divorce by refusing to do the same.
Additionally, in order to dissolve your marriage in a New York court, regardless of whether you are alleging fault, you will need to satisfy the residency requirement for divorce under New York law.
Residency Requirements in New York
There are a few alternative ways of satisfying New York law’s residency requirement. As long as one of them is satisfied, you are eligible to dissolve your marriage in the New York court system.
Either you or your spouse has been living in New York State continuously for at least two years before filing for divorce.
Either you or your spouse has been living in New York State continuously for at least one year before filing for divorce and (1) you got married in New York State, or (2) you lived in New York State as a married couple, or (3) the grounds for your divorce happened in New York State.
Both you and your spouse are residents of New York State on the day the divorce is started and the grounds for your divorce happened in New York State.
How Long Does it Take to Get a No Fault Divorce in New York?
We know you’re ready to move on from this stressful chapter in your life, so you’ll be relieved to hear that there is no New York divorce law waiting period. This means that there is technically no minimum amount of time that your divorce will take, fault or no fault.
However, the court has a lot going on, so you can’t just snap your fingers and be divorced. In practice, even the simplest no fault, uncontested New York divorces tend to take at least about six months.
Keep in mind that a contested dissolution will usually take a whole lot longer than that.
To continue learning about divorce in New York, see the following articles in the series:
- How long does it take to get a divorce in New York?
- New York divorce papers
- New York divorce process
- How much does a divorce cost in New York
- Legal Separation vs. Divorce in New York
- How to File for Divorce in New York
- New York Online Uncontested Divorce
- The New York Divorce Law Waiting Period
- How is Property Divided in a New York Divorce?
- Divorce in NY without spouse signature