SKIP TO
CONTENT
Grounds for Divorce in New York
Table of Contents
New York’s Domestic Relations Law § 170 recognizes seven grounds for divorce. If you are considering filing in Suffolk County or elsewhere on Long Island, you should know that one of those seven grounds dominates modern practice: irretrievable breakdown of the marriage, commonly known as no-fault divorce. The other six grounds remain on the books, but they are filed far less often, and for most clients they offer no strategic advantage.
Below is a full explanation of each ground, what it requires, when it applies, and what it means in practice.
What Are the Grounds for Divorce in New York?
New York did not allow no-fault divorce until 2010. Before that, a spouse who wanted a divorce had to prove that the other spouse did something wrong: cruelty, abandonment, adultery, or imprisonment. Alternatively, the couple could enter into a separation agreement or obtain a separation judgment and then live apart for at least a year before converting the separation into a divorce.
The 2010 amendment to DRL § 170 added a seventh ground: irretrievable breakdown of the relationship. That single change transformed divorce practice in New York. Today, the overwhelming majority of divorce cases are filed on no-fault grounds, and for good reason.
No-Fault Divorce: Irretrievable Breakdown
Under DRL § 170(7), a court may grant a divorce if the relationship between the spouses has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath. Before a judgment of divorce can be entered, all economic issues (equitable distribution, maintenance, child support) and all custody and visitation issues must be resolved, either by agreement or by the court after trial.
Irretrievable breakdown is, by a wide margin, the most commonly filed ground for divorce in New York. Neither spouse has to prove that the other did anything wrong. The sworn statement that the marriage has broken down irretrievably for six months is, for practical purposes, sufficient, and there is no recognized defense to it.
Courts across the state, Suffolk County Supreme Court included, expect no-fault filings. When a plaintiff files on fault-based grounds, the court must hold a separate trial or hearing on the question of grounds before it can address custody, support, or property division. That adds motions, court appearances, and legal fees to a case that could otherwise move directly to the issues that matter: how property will be divided, whether maintenance will be awarded, what the custody and parenting time arrangement will look like, and how child support will be calculated. A fault-based filing that serves no clear strategic purpose does not earn additional sympathy from the bench. It earns additional litigation.
In our practice, we recommend no-fault grounds in the vast majority of cases unless there is a specific reason, tied to the facts of the case, to do otherwise.
Take the First Step.
We Are Here to Help.
Schedule a free, confidential consultation with an experienced Suffolk County divorce and family law attorney. We will honestly explain where you stand and what your options are.
Fault-Based Grounds for Divorce in New York
The remaining six grounds under DRL § 170 are all fault-based. Each requires the filing spouse to prove that the other spouse engaged in specific wrongful conduct. All six remain available, but they are filed far less frequently than they were before the no-fault option became law.
Cruel and Inhuman Treatment
Under DRL § 170(1), a divorce may be granted where the defendant’s conduct so endangers the physical or mental well-being of the plaintiff that it is unsafe or improper for the plaintiff to continue living with the defendant. This is not limited to physical abuse. It can include patterns of emotional cruelty, verbal abuse, threats, and other behavior that makes cohabitation dangerous or intolerable.
The standard is not low. A few arguments, even heated ones, will not satisfy it. New York courts generally require a pattern of conduct, not isolated incidents, and the plaintiff must show that the behavior had a real impact on his or her physical or mental health.
Abandonment
Under DRL § 170(2), a divorce may be granted if one spouse has abandoned the other for a period of one year or more. Abandonment can be actual (one spouse physically leaves the marital home without justification and without the other spouse’s consent) or constructive (one spouse refuses to engage in sexual relations for a year or more without good cause, sometimes called “constructive abandonment”).
The one-year period must be continuous. If the abandoning spouse returns and the other spouse accepts the return, the clock resets.
Imprisonment
Under DRL § 170(3), a divorce may be granted if the defendant has been confined in prison for three or more consecutive years after the marriage. This ground is straightforward but narrow. The confinement must have occurred after the date of the marriage, and the three-year period must be consecutive.
Adultery
Under DRL § 170(4), a divorce may be granted based on the defendant’s voluntary commission of vaginal sexual contact, oral sexual contact, or anal sexual contact with someone other than the plaintiff after the marriage. New York imposes a five-year time limit on this ground: the action must be commenced within five years of the alleged adultery.
Adultery cases carry special evidentiary burdens. The testimony of the spouse alleging adultery is not, by itself, sufficient to prove the claim. Corroborating evidence is required, and the plaintiff cannot have forgiven or “condoned” the conduct. If both spouses committed adultery, the ground may be barred by the doctrine of recrimination.
Given these burdens, and the fact that a no-fault filing achieves the same legal result without any of them, adultery is rarely pled as the sole ground for divorce in modern New York practice.
Separation Decree or Judgment
Under DRL § 170(5), a divorce may be granted if the parties have lived apart for one year or more under a decree or judgment of separation issued by a New York court, and the plaintiff has substantially performed all of the terms and conditions of that decree.
Written Separation Agreement
Under DRL § 170(6), a divorce may be granted if the parties have lived separate and apart for one year or more under a written separation agreement that was properly executed, acknowledged, and filed. As with a separation decree, the plaintiff must have substantially performed all of the agreement’s terms.
Both separation-based grounds saw regular use before the no-fault option became law in 2010. They required couples to formalize their separation and then wait a full year before converting it into a divorce. They remain available, but the same result is achieved more directly by filing on no-fault grounds.
Which Ground Should You Choose?
For the vast majority of divorces filed in Suffolk County and across New York, the answer is no-fault. Irretrievable breakdown is faster, less expensive, and avoids the need to prove wrongdoing. Courts expect it. Judges in Suffolk County Supreme Court handle hundreds of matrimonial cases each year, and a fault-based filing that serves no strategic purpose will not earn your case additional sympathy. It will, however, generate additional motion practice, additional court appearances, and additional legal fees.
There are limited situations where a fault-based ground might serve a tactical purpose. If a spouse has been imprisoned and there are concerns about custody or parenting time, the imprisonment ground puts that fact squarely before the court from the outset. If one spouse’s cruel and inhuman treatment is directly relevant to a custody determination, pleading that ground can frame the issues early. But these are narrow exceptions. They depend on the specific facts of the case, and they should be evaluated by an attorney who regularly practices in Suffolk County Supreme Court.
The bottom line: do not assume that filing on fault grounds will give you an advantage in property division, maintenance, or custody. In most cases, it will not.
Does Your Choice of Grounds Affect Custody, Support, or Property Division?
Many prospective clients assume that proving fault will give them an edge in property division, custody, or support. It generally will not. In New York, the ground for divorce has little to no impact on how the court resolves these issues.
Equitable distribution is governed by DRL § 236(B), which lists specific statutory factors the court must consider when dividing marital property. Marital fault is not among them, except in extreme cases involving egregious conduct such as the deliberate dissipation of marital assets or domestic violence so severe that it shocks the conscience. Short of that threshold, a spouse’s infidelity, for example, will not affect how property is divided.
Custody is determined by the best interests of the child under DRL § 240. The court considers each parent’s ability to provide for the child, the child’s existing relationships, the stability of each home, and each parent’s willingness to foster a relationship with the other parent. The ground for divorce plays no role in that analysis, though the conduct underlying a fault claim could be relevant if it directly affects the child’s welfare.
Maintenance (spousal support) is governed by DRL § 236(B)(6), and while the court has broad discretion, the focus is on financial need, earning capacity, the standard of living during the marriage, and the length of the marriage. Fault is not a statutory factor.
Residency Requirements for Filing in Suffolk County
Before any divorce can be filed in New York, the residency requirements of DRL § 230 must be satisfied. The most common scenarios for Suffolk County residents are set out below.
If the marriage ceremony took place in New York and either spouse has been a resident of the state for at least one continuous year before filing, the residency requirement is met. The same is true if the spouses lived together as a married couple in New York and either spouse has been a resident for at least one year. If the grounds for divorce arose in New York and either spouse has been a resident for at least one year, that also satisfies the requirement.
If both spouses have been New York residents at the time the action is commenced and the grounds for divorce arose in New York, there is no minimum residency period.
Which basis applies depends on the facts of your case. An attorney can advise you on this at your initial free divorce consultation.
New York Child Support & Maintenance Calculator
Estimate maintenance and child support under New York’s formulas, and print the worksheet with our free interactive support calculator.
Frequently Asked Questions About Grounds for Divorce in New York
Do I have to prove my spouse did something wrong to get a divorce in New York?
No. Since 2010, New York has allowed no-fault divorce. You only need to state under oath that the marriage has been irretrievably broken for at least six months. You do not need to prove cruelty, adultery, abandonment, or any other wrongdoing.
Can my spouse stop the divorce if I file on no-fault grounds?
No. There is no recognized defense to a sworn allegation of irretrievable breakdown. Your spouse may contest custody, support, or property division, but he or she cannot prevent the divorce itself from being granted.
Will filing on adultery grounds get me a larger share of marital property?
Almost certainly not. New York courts do not consider marital fault when dividing property or awarding maintenance, except in cases of extreme misconduct that rises to the level of “egregious” conduct. An affair, while painful, will not typically affect equitable distribution, custody, or support.
What is constructive abandonment?
Constructive abandonment occurs when one spouse refuses, without good cause, to engage in sexual relations with the other spouse for a period of one year or more. It is treated as a form of abandonment under DRL § 170(2), even though the refusing spouse has not physically left the home.
How long do I have to live in New York before I can file for divorce?
In most cases, at least one spouse must have been a New York resident for one continuous year before filing. If both spouses are New York residents when the action is commenced and the grounds for divorce arose in New York, there is no minimum residency period.
Can I file for divorce in Suffolk County?
If either you or your spouse resides in Suffolk County, you can file your divorce action in Suffolk County Supreme Court. Matrimonial cases in Suffolk County are heard at the courthouse in Riverhead.
Talk to a Suffolk County Divorce Attorney
At the Law Office of Louis L. Sternberg P.C., we concentrate exclusively on divorce and family law. Our attorneys have handled thousands of cases in Suffolk County Supreme Court and throughout Long Island. If you are considering divorce and want to discuss which ground applies to your situation, we offer a free initial consultation.
Call (631) 600-3295 or use our convenient divorce intake form.
Louis L. Sternberg is the principal attorney at the Law Office of Louis L. Sternberg P.C. in Hauppauge, New York. He has been recognized as a New York Metro Super Lawyer from 2021 through 2026 and concentrates his practice exclusively on divorce and family law in Suffolk County and Nassau County.