Archive for November, 2008

Basics of Maintenance

Sunday, November 30th, 2008

Maintenance is set forth in the Equitable Distribution Law, DRL, Section 236, Part B. Prior to the enactment of DRL Section 236 was enacted, the statute used the term “alimony”.

The statutory factors, pursuant to Domestic Relations Law Section 236(B)(6), relative to the consideration of maintenance are as follows:

(1) the income and property of the respective parties including marital property distributed pursuant to Domestic Relations Law Section 236(B);
(2) the duration of the marriage and the age and health of both parties;
(3) the present and future earning capacity of both parties;
(4) the ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefore;
(5) reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage;
(6) the presence of children of the marriage in the respective homes of the parties;
(7) the tax consequences to each party;
(8) contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
(9) the wasteful dissipation of marital property by either spouse;
(10) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
(11) any other factor which the parties or the Court expressly find just and proper.

In resolving the issue of the appropriate amount of spousal maintenance, the parties in settlement, or a court in trial, must have regard for the standard of living of the parties established during the marriage, whether the party in whose favor maintenance is granted lacks sufficient property and income to provide for his or her reasonable needs, and whether the other party has sufficient property or income to provide for the reasonable needs of the other and the circumstances of the case and of the respective parties.

The court is charged with looking at all sources of income and property that the parties are able to receive in equitable distribution. Income derived from separate property may also be considered by the court. Maintenance (similarly to child support) are determined on the basis of earning capacity, not necessarily earnings! It is, therefore, well within the purview of the court to impute income to one or both parties in determining the basis for the award of maintenance.

The court is required to look at the present and future earning capacity of both parties so be sure to address for both not only their current situations, but respective abilities to be self-supporting in the future, ability to continue to earn in the future and for what period of time, skills and training, and future prospects. The ability to be self-supporting is very fact sensitive and requires careful analysis. Do not just think of Factor #4 as relating to a spouse in a longterm marriage who has not worked in over 20 years, is in mid- to late-50’s, etc., but apply facts to a spouse with young children, still nursing, etc. Self-sufficiency depends upon the ability to achieve a lifestyle equal to that enjoyed during the marriage.

It is the responsibilities of the attorneys for the parties to make the court aware of the tax consequences to a payor spouse and payee spouse. Expert
testimony will be needed to provide the court with the tax impact upon each party of various maintenance scenarios, to allow the court to determine which amount most meets the demonstrated needs of the payee and the ability of the payor to make the payments.

Most often considered under the catch-all factor #11 is the issue of fault. While fault may not be considered in the equitable distribution of the marital estate unless it is egregious, there is no such standard applicable to fault as it relates to an award of maintenance. While marital fault does not preclude an award of maintenance, it is a relevant factor which can be considered. Maintenance can be directed by the court, or can be provided for in a “valid” agreement between the parties. An award of maintenance is ultimately in the discretion of the court. The overriding purpose of spousal maintenance is to enable the receiving spouse to achieve financial independence.

The reason for imposing a time limitation upon a maintenance award is usually to give the supported spouse a reasonable period of time in order to learn or update work skills and enter the work force with a view to being self-supporting. The court may award permanent maintenance. DRL Section 236(B)(9). Permanent, or non-durational, maintenance may be appropriate where one spouse’s energies during the marriage where primarily devoted to homemaking and childrearing to the detriment of being able to become self-sufficient and maintain the pre-divorce standard of living. The court cannot make an open-ended award in terms of the amount that is to be paid; there must be a set number.

On the other hand, durational maintenance is that which is required for a fixed period of time to allow the receiving spouse to become self-supporting and in recognition of the predivorce standard of living. Maintenance terminates upon the death of either party or upon the recipient’s valid or invalid marriage. DRL Section 236(B)(6)(c).

Maintenance is deductible by the payor spouse and is includable in the recipient spouse’s income. However, if a payment is not true maintenance, the IRS will not allow it as a deduction. A person’s marital status is determined, for tax purposes, as of the end of the calendar year. IRC Section 143(a)(1). Therefore, a person who weds on December 29th is considered married for the whole year and, conversely, a person whose divorce is finalized on December 29th cannot file as a married person. A divorce becomes final on the date the judgment is filed in the county clerk’s office. However, the parties can agree, or the court can order, that the maintenance payments are not taxable to the recipient and not an adjustment to the income of the payor. 26 USCA Section 71(b)(1)(B). The court must have a clear rationale for ordering the payments non-taxable.

Where maintenance and child support are both payable, the amount of maintenance must first be deducted before calculating child support. Family Court has jurisdiction to provide support to a spouse, rather than a former spouse.

Bankruptcy and Divorce

Sunday, November 30th, 2008

When your ex-spouse files for bankruptcy, all efforts to collect any debts have to stop unless they fit within one of the exceptions in the bankruptcy statute. This is known as the “automatic stay.” One exception to the automatic stay is the one that allows the commencement or continuation of a proceeding to establish or modify a support award or collect support from property that is not property of the bankruptcy estate. 11 U.S.C. 362(b)(2).

Current support debts survive a bankruptcy without the need for you to have to go to bankruptcy court. Under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, among the changes in creditor priority is that unpaid child support and alimony has priority over any other creditor, including taxes owed. If you are owed back support it is very important that you file a “proof of claim” with the bankruptcy court to receive payment.

The bankruptcy law requires the trustee in bankruptcy, if there is a claim for a domestic support obligation in a case, to provide written notice to the party to whom the domestic support obligation is owed, and to the state’s Child Support Enforcement Agency. A notice at the time of filing and a second notice at the time of discharge are required. In the notice to the creditor, the trustee must provide contact information for your state’s Child Support Enforcement Agency.

The new bankruptcy law made non-support obligations from a divorce or separation non-dischargeable in a chapter 7 bankruptcy, if the discharge of the obligation would harm the spouse to whom the obligation is owed more than it would harm the person who owes it, your ex-spouse. 11 U.S.C. 523(a)(15). A debt that is non-dischargeable means that your ex-spouse is still responsible for it. You would need to file a complaint in bankruptcy court to get the property settlement debt excepted from discharge. If you don’t file a claim with the bankruptcy court, the debt may be wiped out and you won’t be able to collect it later.

The discharge in a chapter 13 case is somewhat broader than in a chapter 7 case. Debts dischargeable in a chapter 13, but not in chapter 7, include debts arising from property settlements in divorce or separation proceedings.

How do bankruptcy courts decide what’s a support obligation and what’s a property settlement? The courts have based their decisions on such questions as:

Does the obligation terminate or reduce with the occurrence of certain events, like remarriage or a child turning 18?
Is the obligation in installments or a lump sum?
Are there minor children?
What is the relative health and education of the parties?
Was there a need for support at the time of the divorce?

The way in which the judgment of divorce is drafted can reduce the chance that the bankruptcy court will discharge the debt. The likelihood that the debt will not be discharged by labeling the debt payments as either support or alimony in the decree.

If you’re listed as a creditor on your ex-spouse’s bankruptcy petition, you should receive notice from the bankruptcy court of the filing and information about the date and time of the first meeting of creditors (known as a “341 meeting”). You should also receive information on the deadline for filing a claim and a proof of claim form for filling out.

Divorce and Appreciation of Separate Property

Monday, November 24th, 2008

In a divorce, appreciation of separate property is considered to be separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the non-titled spouse, in which case the appreciation may be considered marital property. The leading cases addressing these issues are Price v. Price, 69 N.Y.2d 8 (1986) , and Hartog v. Hartog, 85 N.Y.2d 36 (1995). Services of a non-titled spouse as homemaker, spouse, parent and wage-earner are entitled to consideration. Where the efforts of the titled spouse were aided, whether directly or indirectly, by the non-titled spouse, the appreciation is the product of the marital economic relationship and is subject to equitable distribution. To analyze each situation that may arise in a divorce case, the Court of Appeals devised a three-prong test which asks the following questions:
(1) Did the separate property appreciate in value?
(2) Was the appreciation due, in part, to the efforts of the titled
spouse? (i.e., causation)
(3) Were the efforts of the titled spouse aided, directly or indirectly, by
the non-titled spouse?

The burden is on the non-titled spouse to prove the extent of the appreciation. The causation issue has proven to be controversial. The Price Court adopted the use of an active/passive test for determining whether the appreciation was caused or aided by the efforts of the titled spouse. In that case it is clear that the question of whether the non-titled spouse’s role contribution to the appreciation depends primarily upon the nature of the asset and whether its appreciation was due in some measure to the time and efforts of the titled spouse. Court of Appeals’ decision in Hartog holds that while the non-titled spouse does not need to prove a direct causal link between the activities of the spouses and the increase in separate property, appreciation is marital property only in the same proportion that the active efforts of the spouses bear to the active efforts of others and any additional active or passive factors. Thus, the Price Court focused on requiring the non-titled spouse to prove that the efforts of the titled spouse caused or contributed to the appreciation, but the non-title spouse should also be eligible for an award upon a showing that the appreciation was due to the efforts of the non-titled spouse, rather than the titled spouse.

Paternity and Equitable Estoppel

Monday, November 24th, 2008

Equitable estoppel typically arises as a defense in situations where a person, typically a nonbiological father, seeks to avoid child support obligations or the biological father belatedly seeks recognition of his parental rights.

DNA testing is a way to guarantee that non-custodial parents provide financial support for their children and make it possible to accurately determine a child’s paternity in a quick and inexpensive manner. The widespread availability of reliable genetic testing has reduced the need for extensive fact finding hearings and protracted litigation in the court system and can essentially ensure that the presumptive father is really the child’s biological father. However, in New York, not every putative father entitled to a DNA test.

Consider a scenario where a presumptive father files a paternity petition in a New York family court, together with a petition for custody of a child he believed to be his own. The child’s mother concedes paternity and acknowledges that her son refers to the putative father as his father and that the putative father has had some involvement with the child. Lets assume farther that during the paternity hearing, however, the putative father requests that the Court order a DNA test to confirm that he is indeed the child’s biological father. Must the Court issue an order subjecting the child to DNA testing?

In New York, the answer is no. Under what is known as the doctrine of equitable estoppel, the Court may deny an application for a DNA test in a paternity proceeding on the principle of fairness and in the best interests of the child. Equitable estoppel precludes a presumptive father from speaking out against his own acts, commitments or representations if they are reasonably relied upon by the child.

If a substantial parent-child relationship has developed between the putative father and the child and no biological father has come forward to contribute to the costs of the child’s upbringing, New York courts may find that it is not in the child’s best interests to admit DNA evidence that disproves the presumptive father’s paternity. The doctrine of equitable estoppel has often been applied to protect the child from an untimely assertion or denial of paternity, which, if permitted, would damage an existing parent/child relationship.

In Shondel J. v. Mark D., 7 N.Y.3d 320 (2006), the Court of Appeals directly addressed the application of equitable estoppel in paternity and support proceedings. In that case, the court found that the respondent, who never married the mother and was not the biological father of the woman’s child, was equitably estopped from denying paternity. The child was believed to be the product of a brief liaison between the respondent and the mother. The respondent initially acknowledged paternity and provided some financial support. He had intermittent visitation with the child, although he was often not even in the same country as the mother and child. Four years after the child’s birth, it was determined that he was not the biological father. The court found that the respondent was equitably estopped from raising the issue of paternity, both by statute (Family Court Act § 418 [a]; § 532 [a]) and at common law. The court concluded that both the statute and case law required that the best interests of the child controlled whether a person was required to continue support payments, even if it was belatedly determined that he was not the biological parent. “The potential damage to a child’s psyche caused by suddenly ending established parental support need only be stated to be appreciated. Cutting off that support, whether emotional or financial, may leave the child in a worse position than if that support had never been given. . . . [T]he issue does not involve the equities between the two adults; the case turns exclusively on the best interests of the child.”

The doctrine of equitable estoppel evolved as a balancing test between the best interests of the child and the rights of the parent. Where there has been a bond formed between the parent and child, the interest of the child in preserving that relationship and the obligations of the parent toward that child, outweigh the putative father’s interest in establishing whether he is really the child’s biological father.

Basics of Identifying Separate Property in Divorce

Monday, November 17th, 2008

New York State Domestic Relations Law 236(B)(1)(d)(1) provides a list of specific types of property that may not be considered marital property and must be considered the separate property of the title-holding spouse. This property is exempt from equitable distribution. The statute addresses the following categories of property:

(1) Pre-marriage property;
(2) Gifted or inherited property;
(3) Compensation for personal injuries;
(4) Property acquired with separate property;
(5) Property identified as separate property by written agreement.

The property falling within the categories above is considered “separate property” under the Equitable Distribution Law. There may also be other types of property, in addition to the statutory list, which may not be considered “marital property”, such as property acquired after commencement of the marital action.

There is a presumption that property acquired during the marriage and prior to execution of a separation agreement or commencement of a matrimonial action is marital property. Therefore, the party who claims that the property acquired within those time frames is separate property has the burden of proof. Even though separate property is not subject to equitable distribution, it may be considered in making such distribution.

PREMARITAL PROPERTY

Property acquired before the marriage is separate property because the economic partnership created by marriage is not established until the marriage has taken place. This means that even if the parties cohabitated before marriage, the property acquired before marriage and the appreciation to that property to date of marriage, is not marital property.

Wedding gifts are considered to be marital property, unless the gift was something that could be used only by one spouse, or was specifically earmarked as exclusively intended for one spouse. Gifts given by one prospective spouse to the other prior to marriage are the separate property of the recipient spouse. As discussed in a previous post, engagement rings are the separate property of the recipient spouse.

GIFTED OR INHERITED PROPERTY

Property acquired by gift or inheritance by a party from an inheritance, is separate property. Where the gift or inheritance, however, is to both spouses jointly, the property should be viewed as marital. However, interspousal gifts are marital property. With respect to any gift claimed as separate property, the party making such claim will have to show that the property was intended for that spouse alone. Income from separate property is considered to be separate property.

PERSONAL INJURY COMPENSATION

Personal injury includes compensation for personal injury, libel, slander, and malicious prosecution; also assault, battery, false imprisonment or other actionable injury to the person.

PROPERTY ACQUIRED WITH SEPARATE PROPERTY

Property acquired in exchange for separate property is separate property, so long as it has not been commingled with marital property or an interest gifted to the other spouse.

PROPERTY BY AGREEMENT

The parties’ may by a written and acknowledged agreement define property to be separate, no matter what a court might determine.

COMMINGLED PROPERTY

Separate property co-mingled with marital property remains separate if it can be traced to its source and there has been no valid gift or agreement to the contrary. However, separate property that is commingled with marital assets, or placed in the spouses’ joint names, can become marital property. For example, if a spouse places his or her separate property into joint names, such as a house or a bank account, a presumption of a gift arises which, unless rebutted, results in the conclusion that the property is to be treated as marital property. This presumption, if not rebutted, is that the entire amount of the asset will be treated as separate property.

It should be noted that the spouse who contributed separate property may receive a credit for the amount of property contributed to the creation of the marital asset. Recent decisions have extended this concept to include the appreciation of the separate property as a credit to the spouse who contributed it. Similarly to a situation where marital property is used to pay a separate debt, where a spouse uses separate property to pay a loan on marital property, that spouse is entitled to a credit for such payment when the marital property is distributed.

Divorce and New York’s Residency Requirements

Monday, November 17th, 2008

Requiring a period of residence for divorce actions ensures that individuals will not look for a state with more advantageous divorce laws, or use the courts of a state to obtain a “quickie divorce” without having established any real connection with the state.

New York’s residency requirements for filing for divorce are relatively strict compared to many other states. Section 230 of the Domestic Relations law provides that an action for divorce may be maintained only when any of the following conditions of New York residency apply:

1. You and your spouse were married in New York, and either of you is a resident of New York when the divorce action is started and has been a resident of New York for a continuous period of one year immediately before the commencement of the divorce action;
2. You and your spouse have resided in New York as husband and wife, and either of you is a resident of New York when the divorce action is started and has been a resident of New York for a continuous period of one year immediately preceding the beginning of the divorce action;
3. The grounds for divorce occurred in New York, and either you or your spouse has been a resident of New York for a continuous period of at least one year immediately before the beginning of the divorce action;
4. The grounds for divorce occurred in New York, and both you and your spouse are residents of New York at the time of the commencement of the divorce action;
5. Either you or your spouse has been a resident of New York for a continuous period of at least two years immediately preceding the commencement of the divorce action.

If any of the above five requirements are fulfilled, then either party may file for divorce in New York; not just the party meeting the residency requirement. Thus, it is possible to commence a divorce action in New York even if one spouse resides outside of New York State.

Basics of Distributing Retirement Assets

Monday, November 17th, 2008

In 1984, the New York Court of Appeals decided Majauskas v. Majauskas, 61 N.Y.2d 481 (1984). This is the case that decided that the portion of the spouse’s pension, earned during the marriage, is marital property subject to equitable distribution. To the extent that a pension was earned during the marriage, it is, for purposes of New York law, considered marital property. The Majauskas decision sets forth the formula that normally is to be followed in dividing a pension plan. Along with pension plans, other types of retirement assets are divided in a typical divorce case. Retirement assets are usually divided by a QDRO.

A QDRO stands for a “Qualified Domestic Relations Order”. It is an order required by the 1974 federal statute known as ERISA (Employees Retirement Income Security Act), and applies to certain pension vehicles. QDRO may transfer retirement benefits from an employee-spouse to a spouse, former spouse or child of the employee. It must comply with the requirements of state law, as well as ERISA and other federal laws. The state domestic relations law aspects of a QDRO must be approved by the domestic relations judge, while the federal law aspects must be approved by the plan administrator from which the benefits are to be paid.

QDRO’s deal with participants and alternate payees. A “participant” is an employee who participates in either an employer sponsored or a union-sponsored qualified employee benefit plan. An “alternate payee” is a person to whom benefits are transferred in a QDRO and that person must be a spouse, former spouse, child or other dependent of the participant.

Qualified plans are divided under the Internal Revenue Code into two categories:

(1) Defined contribution plans;
(2) Defined benefit plans.

A defined contribution plan is a plan that requires the establishment of an individual account for each participating employee and provides benefits only from the amount contributed to the employee’s account, together with any income, expenses, gains or losses that are attributable to the account. Under a defined benefit plan the controlling factor is the benefit that will be provided to the employee upon his/her retirement and the amount contributed each year is actuarially computed to produce the desired benefit at the time of an employee’s retirement.

It is necessary to ascertain the type of plan to which the QDRO is directed and to understand the significance of a particular plan in the context of a QDRO. The most commonly used types of qualified employee benefit plans include:

(1) Traditional pension plans (defined benefit plan);
(2) Annuity plans (defined benefit plan);
(3) Profit-sharing plans (defined contribution plan);
(4) Money purchase pension plans (defined contribution plan);
(5) Target benefit plans (defined contribution plan);
(6) Employee stock ownership plans (defined contribution plan);
(7) 401(K) plans (defined contribution plans);
(8) Savings (or Thrift) plans (defined contribution plan);
(9) Simplified employee pension plans (i.e., SEP) (defined contribution plan);
(10) Cash balance pension plans (defined benefit plan);
(11) Hybrid plans (features of both defined benefit and defined contribution) – used by many public employee and teacher retirement programs.

Where both spouses have a pension, each may get a portion of each other’s pension, or create some other arrangement that benefits both parties. It is also possible to trade off pensions for other property in the marriage, or a spouse may waive his/her right to receive the pension.

Division of a pension is not automatic. The court has discretion to award the entire pension to the earner where, for example, there is a significant disparity in income.

Pending Bill in New York Assembly With Respect to Divorce and Child Support Standards Act

Monday, November 10th, 2008

There is a bill pending in New York Legislature that could, if passed, make significant changes to New York’s laws dealing with divorce and child support. Assembly Bill A10446 represents a comprehensive effort to reform New York`s divorce and child support laws. The bill contains four major elements: (1) simplifies the grounds for divorce by replacing current grounds with no-fault grounds; (2) adopts a new approach to maintenance, referred to as post-marital income, by establishing guidelines for determining awards of post-marital income; (3)
establishes the right to counsel for a spouse who cannot reasonably afford counsel where the other spouse has obtained or can reasonably afford counsel; and (4) increases the cap on combined parental income used to determine the amount of child support from $80,000 to $500,000, as adjusted annually for any change in cost of living.

It is the last provision that is particularly interesting since there is a significant body of law holding that the $80,000 is the presumptive cap, and in order to calculate child support on combined parental income beyond $80,000, the court must explain its reasoning and provide appropriate justification for its actions in the decision. Even under the present statute, the court can determine whether or not to exceed the cap, and may consider other factors in determining the full support amount. If the bill passes, it is possible that the child support in situations involving high parental income will significantly exceed the children’s needs or any expenses associated with raising the children.

The likelihood of the bill passing into law are difficult to estimate since the bill includes provisions that would amount to a no-fault divorce. Past efforts to pass legislation allowing no-fault divorce in New York State were unsuccessful in view of significant opposition from a variety of different groups.

Child Support and Credit for College Expenses

Sunday, November 9th, 2008

I am often asked whether there should be a reduction in child support in a situation where the child is residing away from home at college and the parent paying child support is also contributing to the cost of college expenses. Since the child support is generally paid to provide shelter and food for the child, if a parent is paying for a room and board at college, the payor parent should only be paying for shelter and food at a single location. The case law holds that, in the absence of an agreement to the contrary, any such reduction or credit is discretionary with the court.

In Pistilli v Pistilli, 53 A.D.3d 1138 (4 Dept. 2008) plaintiff moved to modify the judgment by “[d]istributing the actual and anticipated college education costs associated with the parties’ children,” specifically the parties’ daughter, between the parties. Pursuant to an oral stipulation of the parties that was incorporated but not merged into the judgment of divorce, the parties “agreed to contribute to [their children's college expenses] as they are then financially able.” The Appellate Division held that the court erred in failing to consider defendant’s maintenance obligation in calculating the percentage of defendant’s contribution to the daughter’s college expenses. After subtracting from defendant’s income the amount of taxable maintenance paid to plaintiff as indicated on the parties’ respective 2005 tax returns, which were used by the court in determining the parties’ respective incomes, it concluded that defendant’s percentage of the combined parental income was 64% rather than 80%, and thus defendant’s pro rata share of the daughter’s college expenses was reduced from 80% to 64%. The Appellate Division rejected defendant’s contention that the court erred in determining that he was entitled to a credit against his child support obligation only in the amount of his pro rata share of the daughter’s college meal plan, holding that a credit against child support for college expenses is not mandatory but depends upon the facts and circumstances in the particular case, taking into account the needs of the custodial parent to maintain a household and provide certain necessaries. Because plaintiff had to maintain a household for the daughter during the daughter’s school breaks and weekend visits, it could not be said that defendant was entitled to a credit for the daughter’s rooming expenses. Nevertheless, inasmuch as the Appellate Division reduced defendant’s pro rata share of the daughter’s college expenses from 80% to 64%, defendant’s child support credit based on the college meal plan had to reflect that reduction and it modified the order accordingly.

Basics of New York’s Grounds for Divorce

Monday, November 3rd, 2008

Despite the country-wide trend toward no-fault divorce, New York continues to require that the parties seeking divorce have specific grounds to do so. New York Domestic Relations Law §170 lists the six grounds for divorce. Of the six grounds, four are fault based. Marital fault means that one of the spouses has done something wrong in the context of the marriage. The four fault based grounds for divorce are:

1. 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 and makes it unsafe or improper for the plaintiff to cohabit with the defendant.
2. The abandonment of the plaintiff by the defendant for a period of one or more years.
3. The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.
4. The commission of an act of adultery.

If cruel and inhuman treatment is the ground upon which the divorce action is brought, it may be based upon allegations of either physical or mental cruelty. To be a reason for divorce, the cruel and inhuman treatment must have such a serious effect on the physical or mental health of the divorce-seeking spouse, that it is not safe or proper for the parties to continue to live together. Incompatibility between husband and wife is not a ground for a divorce. Some examples of acts that courts have held to be cruel and inhuman treatment for divorce purposes include: physical attacks upon a spouse; constant screaming, profanity or other verbal abuse; staying away from the house too often without an explanation; publicly flaunting a relationship with another man or woman; and wrongfully accusing the other spouse of adulterous relations with another man or woman. Intentional refusal by a spouse to have sexual relations may be considered cruel and inhuman treatment where it actually has a physical effect upon divorce-seeking spouse. Alcoholism or drug addiction, or substance abuse by itself, usually is not a sufficient basis for divorce, unless the spouse becomes violent or abusive when under the influence so that the other spouse fears for his/her health and safety. Mental illness alone is not a sufficient basis for a divorce on the grounds of cruel and inhuman treatment, unless a spouse’s other behavior could be defined as cruel and inhuman treatment.

The acts or conduct on which the cruel and inhuman treatment is based must have occurred within five years prior to the commencement of the action to be considered by the court, unless it is part of a continuous course of conduct. There are no defenses to cruelty. For example, mental illness, justification or forgiveness is not a defense.

If the ground for divorce is abandonment, it make take two different forms, either actual abandonment or constructive abandonment. Abandonment usually means an actual departure of a spouse from the marital residence, without justification and without an intention to return for a period of one year or longer preceding the filing of the action for divorce. A constructive abandonment occurs when one spouse refuses to have sexual relations with the other, without excuse or justification, for a period of one year preceding the filing of the action for divorce.

If the divorce action is brought on the ground of adultery, the divorce-seeking spouse is likely to face a significant evidentiary burden. Plaintiff is not permitted to testify against the defendant, and any allegations of adultery must be corroborated, i.e., there has to be a witness able to testify that the spouse who allegedly committed adultery engaged in sexual relations or sodomy with another person. Often, adultery is proven by circumstantial evidence.

The two non-fault grounds are based upon a separation of, at least, one year, pursuant to a judgment of separation or written separation agreement. Even if the parties separated for a period of one year or longer, in the absence of a judgment or an agreement executed with the required formalities such separation will not be a basis for a divorce. A separation agreement sets forth the respective rights and duties of husband and wife with respect to the custody of children, visitation rights, support payments, distribution of property, and all other matters pertaining to the marital relationship.

Certain formalities must be precisely followed, or the written agreement will not qualify as a ground for divorce. It must be signed and acknowledged. The agreement must be filed with the Clerk of the County where either spouse lives before an action for divorce may be brought. At the end of one year from the date of the agreement, either spouse may sue the other for a conversion divorce, which is considered to be a no-fault divorce.

In an action seeking a conversion divorce, the plaintiff must establish that the separation agreement was properly signed and acknowledged and was properly filed; that the spouses lived apart during the period of the agreement up to the time of the divorce action; and that the plaintiff substantially complied with the terms of the separation agreement.