Irreconcilable Differences as a Ground for Divorce in New York City

Irreconcilable differences is a no-fault ground for divorce. This means that a judge will grant the divorce, for as long as all other issues related to the marriage, such as spousal maintenance, child support, custody, distribution of marital assets and liabilities, and attorney fees, among others, are resolved.

No-fault vs. fault-based grounds for divorce

The difference between no-fault and fault-based grounds for divorce is the proof you need to submit to the court for the judge to grant your relief.

In New York, fault-based grounds for divorce are:

• Adultery
• Abandonment
• Imprisonment
• Cruel and inhuman treatment
• Divorce after legal separation
• Divorce after judgment of separation

In any of the above cases, you need to submit proof of your ground in order for the judge to grant the divorce. For example, if you file for divorce based on adultery, you need to show proof of adultery. The same applies if you file for divorce based on abandonment. You need to show proof of abandonment. Because submitting proof for a particular ground requires trial and litigation, filing for divorce under these grounds can be expensive.

In 2010, New York added the irretrievable breakdown of marriage for six months as a ground for divorce. In other states, this is known as irreconcilable differences. Irreconcilable differences is a no-fault ground. Your lawyer does not need to show proof that your marriage broke down irretrievably for six months. You only need to allege this in your complaint. For this reason, irreconcilable differences as a ground for divorce has become the most-oft used ground for divorce and is usually the easiest and fastest way to get a divorce.

Other issues of divorce

Just because your ground for divorce is irreconcilable differences does not mean that the judge will immediately grant you that divorce decree. Divorce will not be granted unless you and your spouse agree on the following economic issues:

• Spousal maintenance
• Child support
• Distribution of marital assets and liabilities
• Child custody and visitation
• Attorney fees

Even if you and your spouse agree to divorce, if you do not agree on how to divide your property or how much support the other spouse is entitled to, the divorce will not be granted.

It’s always recommended to resolve these issues out-of-court. It will be less litigious and therefore, cheaper. However, resolving these economic issues out of court does not mean that you should not be represented by a lawyer. In fact, this is the best time to be represented by a lawyer. Why?

Your lawyer will advocate for your rights and get you the best deal you can get in the divorce. You will not be intimidated in case the other party is represented by counsel. You will also be able to detach yourself from the divorce procedure and not be too affected emotionally.

Negotiating the economic issues of divorce should not be a do-it-yourself job. It is not the time to save on legal fees. The outcome of your negotiations will have a lifetime of consequences.

The statutory language behind New York's "irreconcilable differences"

Although the phrase "irreconcilable differences" is the term most people borrow from television and from other states, the correct New York label is "irretrievable breakdown of the relationship." It appears in Domestic Relations Law (DRL) § 170(7), which was added to New York's divorce statute in 2010. Until that year, New York was the last state in the country without a true no-fault option, and spouses had to prove cruelty, abandonment, adultery, imprisonment, or live apart under a written separation agreement or judicial decree of separation. The 2010 amendment changed that.

The statute requires the spouse filing for divorce to swear under oath that the relationship has broken down irretrievably for a period of at least six months. The court accepts the plaintiff's sworn statement at face value. The other spouse cannot defeat the divorce by claiming that the marriage is, in their view, still salvageable. Appellate decisions in New York have confirmed that the breakdown ground is not subject to a trial on whether the marriage really has broken down. The judge's role is to confirm that the economic and parenting issues have been resolved before signing the judgment of divorce.

How a no-fault divorce typically moves through court

Filing a no-fault divorce in New York usually follows a predictable path. The spouse who files starts the case by purchasing an index number from the County Clerk and filing a Summons with Notice or a Summons and Verified Complaint. Once the other spouse is served, they have either 20 or 30 days to respond depending on how service was made. If both parties already agree on every issue, the case is filed as uncontested and moves to the matrimonial clerk for review. If issues remain open, the case is assigned to a justice in the Matrimonial Part of the Supreme Court, and the parties begin preliminary conferences, discovery, settlement negotiations, and (only if necessary) trial.

Most no-fault divorces never see a contested trial. The leverage in a no-fault case is no longer about proving wrongdoing. It is about valuing assets, projecting income, calculating support, and crafting a parenting plan that both spouses can live with. Because the breakdown ground itself is easy to establish, almost all of the work, time, and expense in a New York no-fault divorce relates to the financial and custodial terms, not to the ground itself.

What you still need to resolve before the judgment is signed

It is a common misunderstanding that pleading irretrievable breakdown is enough by itself. It is not. DRL § 170(7) provides that no judgment of divorce on this ground shall be granted until the economic issues and any custody and parenting issues are resolved by the parties or determined by the court. The "ancillary issues" include:

• Equitable distribution of marital property and debts under DRL § 236(B)(5)
• Temporary and post-divorce spousal maintenance under DRL § 236(B)(5-a) and (6)
• Child support calculated under the Child Support Standards Act (CSSA), DRL § 240(1-b)
• Legal and physical custody and a parenting access schedule under DRL § 240
• Counsel fees and expert fees under DRL §§ 237 and 238
• Allocation of health insurance, life insurance, and tax filings

Whether you handle these issues through a stipulation of settlement, an opting-out agreement under DRL § 236(B)(3), mediation, the Collaborative Divorce process, or a contested trial, the court will not sign the judgment until each issue is addressed.

Common mistakes spouses make with no-fault divorces

Because the breakdown ground sounds simple, some spouses assume the whole case will be simple. That assumption causes avoidable problems.

• Signing a settlement before knowing what is on the other side of the balance sheet. Many spouses do not have a clear picture of retirement accounts, restricted stock units, business interests, or hidden debt until discovery is complete.
• Trying to use online forms designed for cases with no children and no real assets. The forms work for the simplest cases. They are dangerous if a pension, deferred compensation, or a closely held business is involved.
• Confusing the no-fault ground with a guarantee of an equal property split. New York is an equitable distribution state, not a community property state. Equitable does not always mean equal.
• Walking away from spousal maintenance without understanding the guideline formula. Even a short waiver clause can have lasting financial consequences.
• Underestimating the value of a properly drafted parenting plan. Generic visitation language creates conflict every year over holidays, school breaks, and travel.

How fault grounds still matter (sometimes)

A handful of clients still ask whether they should plead a fault ground even though DRL § 170(7) is available. In most cases the answer is no. Fault grounds require proof, take longer, and add cost. However, there are situations where a fault pleading or evidence of misconduct can affect collateral issues. Wasteful dissipation of marital property, which often comes up in adultery or gambling cases, is a statutory factor in equitable distribution. Egregious conduct such as severe domestic violence can affect maintenance. Custody decisions are based on the best interests of the child, and conduct that places a child at risk is always relevant regardless of which ground is pled.

Frequently asked questions

Do both spouses have to agree to a no-fault divorce?

No. Only one spouse needs to swear that the relationship has broken down irretrievably for at least six months. The other spouse cannot block the divorce on the ground itself, but they can litigate the economic and custody issues.

How long does a no-fault divorce take in New York?

A truly uncontested case where both spouses agree on everything can finish in a few months once the paperwork is submitted, depending on the county's clerk processing times. A contested case can take a year or more if discovery, valuations, and settlement negotiations are extensive.

Can we be divorced if we still live in the same home?

Yes. Unlike the older "conversion" divorce that required living separate and apart, the irretrievable breakdown ground does not require physical separation. Many New York couples remain under one roof for financial reasons while the divorce is pending.

What if we reconcile after filing?

You can discontinue the action at any time before judgment. If the case has been pending a long time, ask your lawyer about the procedural steps to withdraw the filing.

Will the judge ask why the marriage broke down?

Generally, no. The court accepts the sworn statement. Judges rarely probe the underlying reasons because doing so would defeat the purpose of the no-fault option.

When to involve a New York divorce lawyer

Even when both spouses are committed to a peaceful no-fault divorce, the documents that end a marriage are the documents that determine the rest of your financial life. Before you sign anything, you should understand how New York classifies marital and separate property, how the maintenance and child support formulas apply to your numbers, and what tax consequences flow from each transfer. An experienced matrimonial attorney can identify issues you may not see, draft language that protects you, and make sure the judgment is enforceable years down the road.

Should you need assistance in filing your divorce or negotiating a divorce settlement, we, at the law offices of Albert Goodwin, are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].