by Gary Muldoon
Muldoon & Getz
Rochester, New York
While New York State in 2010 instituted a "no fault" ground for divorce ('irretrievable breakdown"), one of the frequent grounds remains what is commonly called a "conversion" divorce. The statute states as a ground:
The husband and wife have lived separate and apart pursuant to a written agreement of separation, subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded, for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such agreement. Domestic Relations Law § 170(6).
For this ground, a valid separation agreement, signed and acknowledged by both parties at least one year before the divorce is started, is required.
Filing The separation agreement must be filed at the county clerk’s office at some point before the conversion divorce can be granted. (The cost of filing the separation agreement is $5). As part of the "judgment roll," a certificate of filing (an additional $5) should be provided to the court as part of the "judgment roll." (The filing fee for the separation agreement is waived when filed with the index number).
Defenses A plaintiff seeking a conversion divorce is not automatically entitled to one. The other spouse is entitled to notice, and to contest the basis for the divorce. Defenses include if the parties reconciled and thereby abandoned the agreement, or if the plaintiff has not substantially performed the terms of the agreement. Berman v Berman, 72 AD2d 425 (1st Dept 1980), affirmed 52 NY2d 723 (1980); Pugsley v Pugsley, 288 AD2d 284 (2d Dept 2001); Katz v Beckman, 302 AD2d 561 (2d Dept 2003).
Summary judgment Using a "motion for summary judgment" to obtain a divorce is rare. Yet, such a motion may be an appropriate vehicle, particularly in a conversion divorce action, where the plaintiff’s entitlement to divorce is clear, and defendant’s reason for opposing it is baseless. See CPLR 3212(e).
Financial disclosure As part of most separation agreements, the parties will exchange statements of net worth (DRL § 236). To obtain the divorce, even uncontested, court rules require a 236 affidavit signed within one year of commencement of the divorce action. Because the separation agreement is signed at least one year before the conversion divorce suit starts, that statement of net worth should be updated.