Grounds for a Judicial Separation in New York
by J. Douglas Barics
A judicial separation is an action between husband and wife pursuant to Domestic Relations Law 200 which does not dissolve the marriage, but seeks to establish a judgment of separation which may include additional relief such as custody, child support and maintenance. Unlike a divorce action brought under DRL 170, the parties remain married, and the court may not distribute marital property, as a separation is not one of the matrimonial actions listed in DRL 236B(5)(a). The five grounds for judicial separation are as follows:
1. Cruel and inhuman treatment such that the conduct endangers the physical or mental well being of the plaintiff rendering unsafe or improper for the plaintiff to live with the defendant. DRL 200(1).
2. The abandonment of the plaintiff by the defendant. DRL 200(2).
Abandonment consists of four elements:
(a) voluntary separation of one spouse from the other
(b) an intent not to resume cohabitation
(c) lack of consent of the other spouse
(d) no justification
The courts can impose an abandonment claim based on the actions of the parties. See Diemer v. Diemer. The most common acts under which the courts constructs abandonment (called constructive abandonment) are as follows:
(a) One spouse locks the other spouse out of the marital home
(b) The actions of one spouse makes it impossible to live together
(c) Lack of sexual relations
3. The neglect or refusal of the defendant-spouse to provide for the support of the plaintiff-spouse DRL 200(3).
This is the only ground which does not have a mirror companion in a divorce action (DRL 170), and is the most common ground used for a separation action.
4. The commission of an act of adultery by the defendant. DRL 200(4).
Adultery means sexual intercourse. Like a divorce action, there are affirmative defenses to adultery which are (a) procurement (b) voluntary cohabitation after knowledge of the adultery; (c) within five years of the act of adultery (d) the plaintiff also committed adultery. These affirmative defenses are contained as part of DRL 200(4), as contrasted to a divorce action, where they are part of a separate section of the Domestic Relations Law (DRL 171). Under CPLR 4502, a spouse is incompetent to testify against the other spouse to prove adultery.
5. The imprisonment of the defendant to prison for three or more consecutive years after the marriage.
The article "Grounds for a Judicial Separation in New York" is provided as a free educational service by J. Douglas Barics, attorney at law, and does not constitute legal advice. Legal advice may only come from a qualified attorney who is familiar with the facts and circumstances of a specific case.
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J. Douglas Barics, Esq. – Divorce, family, matrimonial lawyer in Long Island, New York.