Grounds for Separation or Divorce

Question 1

What are the grounds for separation of divorce??*********

Answer 1

1. Cruel & Inhumane treatment
2. Abandonment (& Absence)
3. Nonsupport (only used for separation grounds)
4. Adultery
5. Imprisonment
6. Separation Pursuant to Decree or Agreement
7. No-Fault

Question 2

What constitute cruel & inhumane grounds)

Answer 2

• DEFINE
  
  • conduct of D endangers the physical or mental wellbeing of P so as to render it unsafe or improper to continue cohabitation
• CRUELTY
  
  • involves the idea of wantonness or intent to inflict suffering w/deliberaence

Question 3

What constitute the grounds for abandonment (& absence)?

Answer 3

• ABANDONMENT
  
  • voluntary separation of one pty from another w/o justification & w/the intention of not returning
• Must last 1 or more years
  
  • no minimum time period for separation
• ABSENCE
  
  • where a spouse has been missing for 5 years & believed to be dead after a diligent search so long as:
    
    • NY was marital domicile @ time of disappearance of the absence spouse
    • the petitioner is a NY residence & has been so for 1 yr immediately proceeding the commencement of the action

Question 4

What are the grounds for nonsupport?

Answer 4

• only applies to separation
• generally each spouse liable for support of the other
• available even if ptys living apart by mutual agreement

Question 5

What are the grounds for adultery?

Answer 5

• DEFINE
  
  • The adulterous act must have been voluntarily performed
• DEFENSES to an accusation of adultery:
  
  • rape
  • insanity
  • mistake of fact

Question 6

What are the grounds for imprisonment?

Answer 6

1. refers to the confinement of a spouse for 3 ormore consecutive years
2. confinement in a mental hospital does not constitute imprisonment
3. the incarcerated spouse may not seek divorce on the grounds of incarceration

Question 7

What are the grounds for separation pursuant to decree or agreement?

Answer 7

• After the ptys have been separate for @ least 1 year pursuant to a decree or agreement, P is entitled to a divorce:
  
  • termed a conversion divorce
  • allows ptys to extract itself from a dead marriage, where ther is no-fault
  • what was used before no-fault came into effect in 2010

Question 8

What is required for a no-fault divorce?

Answer 8

• Where the marital relationship has broken down irretrvably for a period of @ least 6 months, & one pty attested to this under oath, judgment for divorce shall be granted as long as the following have been resolved by the ptys or determined by the ct & incorporated into the divorce judgment:
  
  • economic issues; equitable division of property
  • waiver of spousal support
  • child support
  • expert & legal fees
  • custody & visitation of the infant child of the marriage

Question 9

What is the SOL for Divorce & Separation?

Answer 9

• Divorce
  
  • 5 year SOL when the divorce grounds are:
    
    • cruel & inhuman treatment or
    • confinement/impriosonment
  • Other grounds no SOL
• Separation
  
  • 5 year SOL when the separation ground is:
    
    • cruel & inhuman treat
    • nonsupport
  • Other grounds no SOL

Question 10

HYPO

Mary and Joseph have been married for ten years. For the past five years, Joseph has refused to have sex with Mary and he has, in general, tried to avoid speaking to Mary. Although she was troubled by the state of her marriage, Mary only recently decided that the situation was bad enough that she should take serious action, and has now decided that she would like to file for divorce. Does Mary have a more promising argument for getting a divorce on grounds of cruelty or abandonment?

Answer 10

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