My spouse wants a divorce. I don’t. Can I fight it?

In some states, it’s not possible to fight a divorce if one spouse wants it and the other doesn’t. Generally, these states offer “incompatibility,” “irreconcilable differences,” and “irretrievable marriage breakdown” as grounds for divorce and are known as “no-fault divorce” states.

New York is not one of these “no-fault” states. In New York, before one spouse can obtain a divorce against the other, he or she must prove that the other has been at fault for one or more years, has an incurable mental illness, or is incarcerated for a number of years. (Being “at fault” includes having committed adultery, cruel and inhuman treatment, or having abandoned the other spouse.) The closest New York has to a “no-fault” ground is when two people have lived separately and apart under the terms of a separation agreement or judgment of separation for one or more years. But again, there must be consent, so theoretically, this is not a “no-fault” ground.

If your spouse wants a divorce in New York and you don’t, you are entitled to a trial by jury on the issue of grounds. You can also have a trial before a judge; this is known as a “bench trial”. Your spouse must prove his or her case and meet all the elements of the particular ground as set forth in the statute. If the divorce is denied, there can be no equitable distribution of marital assets, although the court can make orders regarding child custody and visitation, child support, spousal maintenance, and health insurance.

Philip S. Milone is a matrimonial lawyer with 21 years of experience practicing in New York, Brooklyn, Queens, and Suffolk Counties.