Mineola Divorce Lawyer David L. Martin
Nassau County Divorce Lawyer

What is a divorce?
A divorce is the legal termination of marriage. All states require a spouse to identify a legal reason for requesting a divorce when filing the divorce papers with the court. These reasons given are referred to as the grounds for divorce.

What is a "fault" divorce?
A fault divorce may be granted when the proper grounds are present and at least one spouse files for it. The traditional grounds for a fault divorce are as follows. 1. Cruelty - inflicting unnecessary emotional or physical pain. This is the most frequently used ground for fault divorces. 2. Adultery. 3. Abandonment - desertion for a specified length of time. 4. Confinement in prison for a set number of years. 5. Physical inability to engage in sexual intercourse, if it was not disclosed before marriage.

What happens if both spouses are at fault?
The court will grant a divorce to the spouse who is considered to be least at fault under a doctrine called "comparative rectitude." A long time ago, if both parties were at fault, the divorce was not granted to either party, which forced people to stay married when they no longer wanted to be married. The comparative rectitude alleviates this situation by granting the divorce to the party least at fault.

What is a "no-fault" divorce?
A "no-fault" divorce is one where the spouse suing for divorce does not have to prove that the other spouse did something wrong. All states allow divorces regardless of who is at "fault”. To file for a no-fault divorce, one spouse must simply state a reason recognized by the state. In most states, it's as easy as stating that the couple cannot get along (e.g., "incompatibility," "irreconcilable differences," or "irremediable breakdown of the marriage"). However, in several states the couple must live apart for a period of months or even years in order to obtain a no-fault divorce.

What is the benefit of filing for a fault divorce when no-fault divorces are so much less hassle?
Some states require a lengthy period of separation required before you are able to file for a no-fault divorce, and some people do not want to wait that long before filing. Also, in some states, a spouse who proves the other's fault (or greater fault, if both are at fault) may receive a greater share of the marital property or a higher amount of alimony. However, not all states allow a spouse to file for a fault divorce. 15 states offer only no-fault divorces, which means that a no-fault divorce is the only option even when there has been substantial wrongdoing. It's best to consult with a qualified attorney before petitioning for a divorce, whether it be fault or no-fault, so you can be sure you are complying with your state's laws on this matter.

What is dissolution?
The act of terminating a marriage, but the term does not apply to an annulment. Dissolutions are subject to the laws of the states that provide for them. State law governs the procedures for the termination of the marriage and the distribution of marital assets, custody, visitation, and support issues.

What is a legal separation?
Legal separation is a legal status conferred by a court, where the parties remain married, but the court sets the rights and liabilities of the parties with respect to child custody, support, visitation, alimony, property and debts. The process of legal separation is sometimes called separate maintenance. A decree of separate maintenance cannot later be converted to a divorce decree. If parties in a legal separation later desire a divorce, they must file a new divorce action.

What is an annulment?
An annulment is a method of voiding the contract of marriage. If an annulment is granted, the result is that the parties are treated as if the marriage never occurred. An annulment can only be granted if the initial marriage contract suffers from a defect in the contract formation. Such defects include an underage party without parental consent, a party lacking the mental capacity to understand the marriage contract or fraud in the inducement of the marriage contract. An annulment can only be granted to the innocent party, or the party that suffers from the defect.

Can a divorce action be stopped by one of the spouses?
A no-fault divorce can't be stopped by a spouse because objecting to the other spouse's petition for divorce is itself an irreconcilable difference that would justify the divorce. However, a spouse could potentially stop a fault divorce by either convincing the court that he/she was not at fault or by using any of the following defenses. 1. Condonation - implied approval of another's activities by treating the person as though the offense were never committed. Example: if one spouse committed adultery and the other never objected to it, the offending spouse could say that the other spouse condoned the behavior. 2. Connivance - setting up a situation so that the other person commits a wrongdoing. Example: inviting the offending spouse's lover over then leaving them alone together for an extended period of time would be considered conniving an adulterous behavior. 3. Provocation - inciting of another to do a certain act. Example: if one spouse sues for divorce on the grounds of cruelty, and it is later proven that he/she provoked the other into committing the act, the petition for divorce can stopped. 4. Collusion - secret agreement or cooperation between the spouses designed to deceive the judge. Example: a couple doesn't want to wait through the separation period required to file a no-fault divorce, so one manufactures a "fault" with the other and files for a fault divorce

Kew Gardens Divorce Lawyer David L. Martin
Queens New York Divorce Lawyer