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Grounds for Divorce in New York versus California

In this post, I’m going to continue my comparison of how New York and California treat various topics. As with past posts, I’m hoping that you can see how laws differ between states in the US, but also have some similarities as well. The topic today is going to be the grounds or reasons upon which you can seek divorce in California versus New York.

New York
In my last post, I described the seven different grounds or reasons why you can seek a divorce in New York state. These are summarized in bullet point format below. The relevant statute is section 170 of New York’s Domestic Relations Law. Section 170 is quite long so I’m not going to quote it here verbatim. Please do refer to the precise text of section 170 if you need anything more than what I’m going to paraphrase below:

  • Cruel and inhumane treatment by defendant such that it endangers plaintiff’s physical and mental well-being to remain in the marriage;
  • Defendant abandons plaintiff for at least one year;
  • Defendant is confined in prison for at least three years;
  • Adultery;
  • Spouses living apartment for at least a year pursuant to a judgment of legal separation;
  • Spouses living apart for at least a year pursuant to a written separation agreement; or
  • Spouses with a relationship that has irretrievably broken down for at least 6 months.

To contrast with New York, California’s grounds for divorce are much simpler. There are basically only two grounds: (1) irreconcilable differences, and (2) permanent legal incapacity to make decisions. If you’re looking at a California divorce petition, the grounds for divorce are mentioned in section 5(a) on page 2.

If you’re a law nerd like me and want to look up the relevant California law, the statutes in question are sections 2310 to 2313 of the California Family Code. If you’re also a news nerd as well, you might have seen that a lot of news stories about divorce cases in California mention “irreconcilable differences” as if it’s something scandalous or unusual. For instance, suppose a celebrity of some kind files for divorce so it gets reported as entertainment news.

I suppose that irreconcilable differences could theoretically be scandalous, but in terms of it being unusual, my opinion is that it’s not. Practically-speaking, the overwhelming majority of people filing for divorce in California put irreconcilable differences down as their grounds. Irreconcilable differences has a specific definition under section 2311 of the California Family Code as well:

“Irreconcilable differences are those grounds which are determined by the court to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved.”

Strangely, “permanent legal incapacity to make decisions” is not defined in the California Family Code. I handled my first California divorce case in 2010 and have yet to see a case where “permanent legal incapacity to make decisions” was used — successfully or not — as grounds for the divorce. All that the California Family Code says — see Section 2312 — is that that ground is only available upon proof (e.g. medical or psychiatric proof) that the respondent lacked legal the capacity to make decisions both currently and at the time the divorce petition was filed. The “respondent” in a California divorce is the party who did not file the case.

Part of the reason why California has so few grounds for divorce is that California divorces are what is known as “no fault”. In other words, blame for the breakdown of a marriage is not relevant for a California divorce. Parties are not punished for acts like adultery with, for instance, a lesser percentage of marital property or a higher alimony burden.

As always, I hope this is helpful. My usual disclaimers apply, of course. This post is not meant to be a comprehensive discussion. Instead, it’s meant to be a cursory or superficial discussion only so that, if you wanted to, you could have a better idea of what search terms to use in Google to find more detailed information. If you have an actual court case the result of which will turn on what precisely counts as grounds in a New York divorce case or a California divorce case, it’s entirely possible that the information I mention here will have changed between the time I wrote this post and the time you’re reading it. Absolutely do your own research because, obviously, relying on outdated or inaccurate information is never part of a formula for success.

Lastly, although I have been licensed to practice law in New York state since 2012, I do not maintain any sort of office in New York as of the date of this post. Due to New York Judiciary Law section 470, I am, therefore, not allowed to represent clients in New York. If you have a divorce case in New York, feel free to get in touch. I can’t guarantee it, but it’s possible I may know a lawyer I can refer you to.

Good luck!

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Andy Chen

Andy I. Chen is a lawyer licensed to practice law in California and New York. Andy maintains offices in Los Altos, California and Modesto, California. Under the New York Court of Appeals' 2015 decision in Schoenefeld v. State of New York, Andy does not accept cases from those in New York state. He does, however, know many lawyers in New York state and would be happy to make a referral.

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