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Should I File a Fault or No-Fault Divorce?

by | Apr 21, 2020 | divorce, News and Events

Determining how to file for divorce to obtain the best outcome can be difficult. Here’s what you need to know about the two different types of divorce options in New York, fault and no-fault divorce, and how to decide which is best for your unique circumstances.

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Fault Divorce

In the past, a divorce could only legally be granted if one spouse showed wrongdoing on the part of the other, usually egregious in nature. When filing for divorce in this manner, the “fault” of the failed marriage lies with the individual who committed the wrongdoing. This could sometimes lead courts to favor the “innocent” spouse, awarding them more property or ordering the “guilty” spouse to pay more alimony. A fault divorce may be contested, meaning that the spouse shouldering the blame argues that they were not at fault for the breakdown of the marriage, or that it was the other spouse who committed the wrongdoing that should result in divorce.

No-Fault Divorce

No-fault divorce is a much more common form of divorce today, which allows a marriage to be dissolved with neither spouse assigning fault to the other. Often citing “irreconcilable differences,” a no-fault divorce does not require the demonstration of wrongdoing on the part of either spouse for the divorce to be granted.

Is New York a Fault State?

All states in the U.S. now allow for no-fault divorces. Some, however, still allow for fault divorces.

Grounds for Divorce on Long Island

If you wish to file for a divorce on Long Island, you must have one of the seven allowable grounds to do so, the first of which is a no-fault divorce:

  1. Irretrievable breakdown of the marriage. The relationship has been over for a minimum of six months and both individuals are ready to move forward with the legal dissolution of the marriage.
  2. Abandonment. An individual may file for a fault divorce in New York if their spouse has abandoned them for a period of at least one year. This includes physical abandonment and refusal of sexual relations.
  3. Adultery. If one spouse cheats on the other, this may be cited as grounds for a fault divorce. This may be difficult to prove, however, since evidence is needed to support the claim of adultery.
  4. Cruel and inhuman treatment. If one spouse has treated the other cruelly and the victimized spouse has been mentally and physically in danger within the last five years, a fault divorce may be granted.
  5. Incarceration. A person may file for a fault divorce if their spouse has been imprisoned for a minimum of three consecutive years. This grounds for divorce may be used while the offending spouse is incarcerated, or up to five years following their release.
  6. Divorce after issuance of a separation judgment. Used infrequently, this ground requires the Supreme Court to draft a separation agreement wherein a married couple live apart for one year prior to the dissolution of the marriage.
  7. Divorce after legal separation. This is a common grounds for divorce if the couple has been legally separated for at least a year prior to filing.

Filing a No-Fault Divorce Even if Fault Exists

Often, grounds for divorce exist when a marriage becomes unsalvageable. However, it may not necessarily be in your best interest to file for a fault divorce using one of the available grounds. No-fault divorces can frequently proceed uncontested, which means you and your spouse agree on all matters regarding the divorce, including property division, alimony, child custody, and other pertinent issues. A no-fault divorce often costs less time and money than fighting a fault divorce in court.

Considering Your Divorce Options? Contact an Experienced Long Island Divorce Attorney

If you’re considering dissolving your marriage or have been served with divorce papers by your spouse, you face many obstacles ahead. Whether you decide to file for a fault or no-fault divorce, it’s critical to have someone in your corner who can advise you of your legal options and help you make informed decisions. By working with an experienced Long Island divorce attorney, you can increase the chances that you’ll achieve the best outcome possible. Contact Hornberger Verbitsky, P.C. today for more information by calling 631-923-1910.

 

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Ann Masten
Ann Masten
17:48 12 May 20
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Everett Roberts
Everett Roberts
14:30 18 Mar 20
Going through a divorce was very challenging and emotional. Searching for an attorney can be challenging as well when you consider everything that is at stake. The choice I made to work with Rob Hornberger was surely the best choice available. His professionalism, expertise, and understanding made him and the entire team perfectly suited to achieve the outcomes I desired. Rob was always available to answer my questions and give me advice and legal considerations that affected my situation. The support I received from his staff was exemplary as well. The staff was courteous, kind, and also very professional. Thank you so much Rob and team for a worry free experience.
Annemarie Cusumano
Annemarie Cusumano
21:41 17 Mar 20
Being in family court especially when your children are on the line is extremely emotional and stressful but working with Robert and Christine put me at ease and made the process as pleasant as a situation like that can be. I have a now 3 year old daughter (who is the most important person in my life) and I've been working with them for over two years since my daughter was 7 months old, the case has been up and down and through it all Rob and Christine have never given up. My original case was due to a neglect charge. Cps is not easy to work with, but Rob and Christine were vigilant and I ended up getting my daughter back within 8 months and did not have to plead guilty to the neglect. Currently I am in family court to figure out a custody agreement. They are professional, empathetic, and patient. They have always explained everything thoroughly, informed me of all my options and advised me of what my best option would be. They always respond quickly when I contact them with questions or concerns and most importantly they fight for me in court and don't give up even when things get rough. Before hiring Rob and Christine I met with other attorneys who did not make me feel confident or comfortable at all about my case, so I am very grateful to have found Rob and Christine and to be represented by such great attorneys. I highly recommend them for any family court matters and will definitely continue to use them in the future if needed.
Steven Frierman
Steven Frierman
02:25 07 Mar 20
After meeting with 3 different lawyers, we felt Robert understood us best and he genuinely had our best interests at heart. This helped us resolve a few minor issues in a timely fashion and make a potentially stressful situation go more smoothly.Thank you
Randi Gottlieb
Randi Gottlieb
18:47 03 Mar 20
Hornberger Verbitsky, P.C. - Mr. Robert Hornberger and his staff are beyond professional, they quickly gave me my consultation appointment, and helped me with an after-Divorce issue. Mr. Hornberger was empathetic and explained to me what I should expect. Mr. Hornberger was extremely professional and advised me of my options, he helped me proceed with accurate and smart decisions. I wish I had Mr. Hornberger and his highly recommended staff when I was getting divorced. I would highly recommend Robert and his staff to anyone who is getting a divorce or in need of help with situations after the divorce!

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