How to Divorce Legally

There are a lot of reasons why couples file for divorce. But not all divorces filed are granted by the court. Like other laws, there should be valid grounds before divorces can be filed and granted. In order to shed light on the subject, here are some common questions about divorce grounds:

Can we change the grounds that I originally filed for divorce? Yes, as long as it’s valid. That’s all the court cares about. If it’s valid and will help you in your cause, then it’s alright to do so. It can be a case-to-case basis, though.
Is separation a valid ground for divorce? It is, but it may vary according to the laws of the state that you’re in. It is best to consult a lawyer regarding the matter. There are some states that accept separation as legal grounds for divorce.
What exactly constitutes abandonment? Basically, if the person leaves and doesn’t come back. There are some cases when a couple fights, one leaves the house and stays over at a friend’s house and then returns. This can’t be considered abandonment, even if said couple doesn’t talk to each other or the person returns at the house when the spouse leaves for work.
Can the husband’s abusive behavior become a valid reason for divorce? Yes. Abuse is one of the common grounds for divorce. You have to consult with your lawyer regarding what grounds apply to you, since it varies from state to state. But it’s certainly valid.

Posted in Uncategorized | Comments Off

Legal Separation in New York – The Difference Between Separation Agreements and Separation Decrees

New York is widely known as a state with domestic relations laws that are complex, confusing, and anachronistic. This article will seek to clarify the considerable confusion that exists regarding the meaning of the term “legal separation” and the distinction between separation agreements and separation decrees.

The term “separation” used to describe both separation agreements and separation decrees. Despite the identical terminology, they are different mechanisms. Concisely stated, the distinction is as follows: Separation Agreements are contracts which may be entered into by any married couple to memorialize their intention to live apart from one another and their agreement regarding financial issues, whereas separation proceedings are lawsuits, which must be based on one of the grounds enumerated in the NY Domestic Relations Law (“DRL”) § 200.

An action for legal separation is commenced by filing a summons and complaint in the Supreme Court, which is the New York court with jurisdiction to adjudicate matrimonial matters. As with divorce, an action for legal separation should be commenced in the New York county in which either you or your spouse resides. The legal grounds that a plaintiff must establish to get judgment of separation under New York law are set forth in DRL § 200, and they are summarized as follows:

The cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant.
Abandonment of the plaintiff by the defendant.
The neglect or refusal of the defendant-spouse to provide for the support of the plaintiff-spouse where the defendant-spouse is chargeable with such support.
The commission of an act of adultery by the defendant; except where such offense is committed by the procurement or with the connivance of the plaintiff or where there is voluntary cohabitation of the parties with the knowledge of the offense or where action was not commenced within five years after the discovery by the plaintiff of the offense charged or where the plaintiff has also been guilty of adultery
The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.

In contrast, no “grounds” are required to enter into a valid separation agreement. Further, although separation agreements may (and frequently are) filed with the Supreme Court, such filing is not essential one of the parties seeks to commence a New York divorce action based on the separation agreement. If the parties reside separately and apart from each other for a period of at least one year following the execution of the Separation Agreement, they may be able to obtain a “conversion divorce” under New York’s DRL § 170 (6). Regardless of whether the parties live separately and apart from each other, their agreement may be enforced pursuant to § DRL 236 B(3).

Posted in Uncategorized | Comments Off

Abandonment As a Ground For Obtaining Judgment of Separation Under New York Law

Pursuant to New York’s Domestic Relations Law (DRL) § 170(2), abandonment constitutes one of the legal grounds pursuant to which a New York resident request a judgment of separation from his or her spouse. New York courts have consistently held that for an act of abandonment to constitute sufficient grounds for a judgment of separation under New York law, the defendant-spouse’s departure must have been: (a) voluntary; (b) unjustified; and (c) permanent.

A complaint for separation based on abandonment must allege that it was the Defendant who departed from the marital residence. Plaintiffs who allege in their separation complaints that they (rather than their spouses) left the marital residence will not succeed in obtaining separation judgments based on abandonment. They may wish to consider filing a separation complaint based on one of the alternative statutory grounds for separation, such as cruel treatment.

DRL § 170(2) does not set forth any minimum duration of the abandonment for it to support a judgment of legal separation. In contrast, DRL § 170(2), which sets forth abandonment as a ground for divorce in New York, explicitly requires that the alleged abandonment last for a continuous period of at least one year. Notwithstanding DRL § 170(2)’s lack of any minimum time period, the fact is that New York courts do consider the length of the abandonment as one of the principal factors in determining whether or not the defendant’s alleged conduct has been sufficiently unjustifiable so as to warrant a judgment of separation. If nothing else, the duration of the defendant-spouse’s absence is relevant to whether or not his or her actions were wrongful and were intended to be permanent. Accordingly, a New York separation complaint the precise duration of the abandonment.

New York continues to be the only remaining state in the United States without no fault divorce. Each year, the New York legislature considers legislation for no fault divorce. Notwithstanding calls for change by the judiciary and New York divorce lawyers, the law remains unchanged. As is the case with the DRL’s divorce grounds, the DRL’s provisions for abandonment require that a plaintiff allege “fault.” The fact that husband and wife no longer reside together in the same residence is not a sufficient basis for a legal judgment of separation. For this reason, a separation complaint should be completed with care, and specific attention must be paid to the statutory grounds.

Posted in Uncategorized | Comments Off

Grounds For Divorce in South Carolina

In Order to receive a divorce in South Carolina you must have one of the five available legal grounds.

Physical Cruelty – This is the ground based upon one spouse’s physical mistreatment of the other. It can be established by either a series of abuse, or by a single incident of exceptional violence. There is no requirement that one spouse ever be arrested or prosecuted for domestic violence or any other crime.

Adultery – This is established by proving that the spouse had both motive and opportunity to have a physical relationship outside of the marriage. It can be established by purely circumstantial evidence. Adultery can be based on homosexual acts. Courts do not consider a purely online or telephone relationship to be adultery.

Habitual Drunkenness – This is proven by showing that one spouse abuses alcohol or drugs to the point that it has resulted in a breakdown of the marriage. The drug or alcohol use must exist close to the time the divorce case is filed.

Abandonment or Desertion – This is the ground based upon one spouse’s leaving the other without their consent for one full year. This is a fault ground, and was established before the advent of the “no fault” option described below. Although this ground still exists, it has fallen out of favor and is no longer actively pursued by most Family Law attorneys.

One Year Separation – This is based upon showing that the spouses are “living separate and apart without cohabitation for a period of one year.” A divorce on this ground can be granted as quickly as the same day the pleadings are filed, there is no set waiting period. Unless special arrangements are made however it ordinarily takes 6-8 weeks to receive a Court hearing.

All of the grounds will likely require additional evidence beyond the parties’ testimony. This is usually accomplished through the testimony of a third party who can verify the authentic of the ground. This rule was created to prevent people from making up a fault ground in an effort to defraud the Court into granting a divorce they were otherwise ineligible for.

Divorces based on Physical Cruelty, Adultery and Habitual Drunkenness may be granted by the Court after as little as 90 days. However in order to obtain an expedited divorce it is necessary to have a complete and full agreement with your spouse as to all ancillary issues (such as child custody, alimony, property division, or debt allocation). If you do not have an agreement, and a trial is necessary, it will ordinarily take much longer than 90 days to have your case come to Court. By that point you may be eligible for a divorce on the One Year Separation ground.

Legal Separation does not exist in South Carolina. Our closest equivalent is called Separate Support and Maintenance. In the event that a ground does not exist, or a spouse does not want to pursue a divorce, they can request relief resolving ancillary divorce issues through a petition for Separate Support and Maintenance. In the event that a ground for divorce cannot be fully proven Court the judge is allowed to consider the case as one for Separate Support and Maintenance.

Posted in Uncategorized | Comments Off