Where your spouse is absent and missing for five years or more, you may bring a special proceeding in Supreme Court to dissolve the marriage. You must prove that your spouse has been absent for five successive years, without being known to be alive; that you believe that your absent spouse is dead; and that you made efforts to discover that he or she is still living, but no evidence proving otherwise was found. After the dissolution becomes final, the reappearance of your absent spouse does not revive your marriage.
A separation agreement is a detailed contract which should be prepared by attorneys, where the parties agree to live separate for the rest of their lives. It should set forth the respective rights and duties of husband and wife with respect to the custody and access to children, support payments, distribution of property, and all other matters pertaining to the marital relationship.
Certain vital formalities must be carefully followed, or the written agreement will not qualify as a ground for divorce. Here, the skill and experience of the attorneys for the husband and wife are uniquely valuable in helping them reach an agreement that will be fair, just and reasonable to both parties and their children.
What is “irretrievable breakdown of the marriage”?
An irretrievable breakdown of the marriage allows one spouse, unilaterally, to end a marriage and to do so without the agreement of the other spouse. However, the 2010 law provides that a court cannot grant a judgment of divorce unless and until the economic issues of the marriage are dealt with.
To prove the ground of irretrievable breakdown of the marriage the party seeking the divorce must demonstrate that:
- the relationship between husband and wife has broken down irretrievably;
- for a period of at least six months;
- provided that one spouse states this under oath; and
- proves that the “economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts’ fees and expenses as well as the custody and visitation with the minor children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce.”
UNCONTESTED: Your divorce will be uncontested if both you and your spouse:
• Want to get a divorce
• Agree about what will happen with your children, your finances, your property after the divorce
If your divorce is uncontested, and you and your spouse have reached agreement on all financial and parenting issues, you may use the Court’s free Uncontested Divorce Forms Packet. You can also use the DIY (Do-It-Yourself) Uncontested Divorce Program if you are filing for an uncontested divorce, your marriage has been over for at least six months, there are no children under 21, and all marital property issues, including debt, have been settled.
If you have not reached agreement, and you think you and your spouse could come to an agreement with some help, you might want to consider divorce mediation or collaborative family law.