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.

How No-Fault Divorce Actually Works in New York

New York's no-fault statute is Domestic Relations Law Section 170(7). It allows divorce when "the relationship between husband and wife has broken down irretrievably for a period of at least six months." The required allegation is a simple sworn statement. The other spouse cannot defeat the divorce by denying that the marriage is broken — the law accepts the sworn statement of one spouse as sufficient. This is a significant departure from the older fault-based regime, where the spouse seeking divorce had to prove specific misconduct by the other.

That does not mean the divorce is automatic. The court will not enter the final judgment of divorce until all the financial and parental issues are resolved. Until those issues are resolved, the marriage cannot be terminated even if both spouses agree the relationship is over.

The Six-Month Look-Back

The statute requires that the breakdown have existed "for a period of at least six months" before the filing. In practice, this is satisfied by a simple statement that the relationship has been broken for the required period. Courts do not investigate whether the marriage was really broken for exactly six months or for some other period; the sworn statement is accepted. The six-month requirement is rarely contested in litigation.

What the Other Spouse Can and Cannot Do

The non-filing spouse cannot defeat a no-fault divorce action by disagreeing that the marriage is broken. They can:

• Contest the resolution of economic issues — maintenance, equitable distribution, custody, support.
• Contest the jurisdiction of the court if there are residency or service issues.
• Counterclaim for divorce on different (or the same) grounds.
• Participate in discovery, motion practice, and ultimately trial on the contested issues.

What they cannot do is hold the marriage together against the other spouse's wishes. The era of "defending the marriage" against a fault-based divorce action is over.

When Fault Grounds Still Matter

Even though irreconcilable differences is the most common ground used today, fault grounds still appear in New York divorces in limited circumstances. They may matter when:

• One spouse wants to use the fault evidence as part of the equitable distribution analysis (allowed only for "egregious" misconduct under New York case law).
• One spouse wants to challenge maintenance entitlement on the basis of "wasteful dissipation" of marital assets.
• The case involves criminal conduct — assault, child abuse, fraud — that is also relevant to custody or financial decisions.
• One spouse wants to assert grounds for an annulment rather than a divorce, which has different consequences.

The Settlement Agreement Is the Real Work

Once the grounds are established under DRL Section 170(7), the divorce itself is a procedural formality. The real work of the divorce is in the settlement agreement. The settlement agreement addresses:

• Maintenance. Whether maintenance will be paid, by whom, in what amount, and for how long. Whether maintenance is modifiable. Whether maintenance terminates on remarriage, death, or cohabitation.
• Equitable distribution. How marital property is divided. What is treated as separate property. How specific assets — the marital home, retirement accounts, business interests, investment accounts — are handled.
• Child support. The amount and method of payment, the duration, and the add-on expenses.
• Custody and parenting time. Legal custody, physical custody, the regular parenting schedule, the holiday and vacation schedule, and decision-making authority.
• College tuition. Whether either parent will contribute, in what amounts, and under what conditions.
• Health and life insurance. Continued coverage of the children and (sometimes) a former spouse.
• Tax matters. Filing status for the year of separation, allocation of dependency exemptions, treatment of capital gains and losses.
• Retirement accounts and QDROs. Division of retirement plans and the technical orders required to implement the division.
• Estate planning. Updates to wills, beneficiary designations, and powers of attorney.

Common Mistakes Made in Settlement Negotiation

• Trading short-term wins for long-term losses. A favorable maintenance number now may be offset by an unfavorable property split, and the math has to be done across the whole picture.
• Ignoring tax consequences. Some property transfers and support payments are taxable; others are not. Failing to account for tax can be expensive.
• Failing to value illiquid assets. Closely held businesses, real estate, and retirement accounts may require professional valuation. Settling on a number based on guesses leaves money on the table.
• Forgetting about retirement plan distributions. A QDRO is required to divide most retirement plans. Without one, a former spouse may have to wait until retirement to access the share.
• Ignoring the cost of executing the deal. Selling the marital home, transferring titles, and refinancing existing debt all have transaction costs that should be accounted for in the agreement.

Timing Considerations

From filing to final judgment, an uncontested no-fault divorce typically takes 8 to 16 weeks depending on the county. Contested cases can take a year or more. Where issues are heavily contested — particularly equitable distribution of complex assets, valuation disputes, custody, or business interests — the timeline can extend to two or three years. Most cases settle before trial, but the time required for discovery, expert reports, and motion practice can be substantial.

Cost Considerations

An uncontested divorce handled by a lawyer typically costs in the low thousands of dollars, depending on the complexity of the agreement and the issues involved. Contested divorces commonly run from $10,000 to $100,000 per side and can run much higher in complex high-asset cases. Forensic accountants, custody evaluators, and other experts add to the cost in contested cases. We discuss fees and budget realistically at the initial consultation.

When Mediation or Collaborative Divorce Makes Sense

For couples who can communicate and have similar settlement goals, mediation or collaborative divorce can produce an agreement faster and at lower cost than traditional litigation. In mediation, a neutral mediator works with the couple to develop an agreement. In collaborative divorce, each spouse has their own attorney but the attorneys commit in advance not to litigate. Both approaches require good faith and willingness to disclose financial information voluntarily. Where the underlying conflict makes those impossible, traditional litigation remains the better choice.

Call Our Office

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].