New York Domestic Relations Law §170(5) and §170(7): Living Separate and Apart Under a Separation Judgment Compared to No-Fault Divorce

New York Domestic Relations Law (DRL) §170 establishes the legal grounds upon which a court may grant a judgment of divorce. One of these grounds, DRL §170(5), allows a divorce after the spouses have lived separate and apart pursuant to a judgment of separation. Another, DRL §170(7), provides New York's no-fault ground for divorce based on the irretrievable breakdown of the marriage. Although both provisions authorize the dissolution of a marriage, DRL §170(7) has become the preferred method because it simplifies the divorce process and eliminates many procedural requirements.

DRL §170(5) permits a spouse to obtain a divorce after the parties have lived separate and apart for at least one year following the entry of a valid judgment of separation. A judgment of separation is a court order that establishes the parties' legal rights and obligations while they remain married. The judgment typically addresses matters such as financial support, custody, parenting time, and other marital issues, while allowing the spouses to live independently. To obtain a divorce under DRL §170(5), the spouse filing the action must demonstrate that the judgment of separation was properly entered, that the parties substantially complied with its terms, and that they lived separate and apart for at least one continuous year after the judgment was entered.

Historically, DRL §170(5) provided an important avenue for spouses who wished to end their marriage without relying on fault-based grounds such as adultery, abandonment, or cruel and inhuman treatment. Before New York adopted no-fault divorce in 2010, separation-based divorces offered an alternative that avoided proving misconduct. However, obtaining a judgment of separation requires an initial court proceeding before a divorce action can even begin. After the judgment is entered, the parties must remain separated for at least one year before becoming eligible to seek a final divorce. This two-step process often increases both the time and expense required to dissolve a marriage.

Today, most spouses instead file for divorce under DRL §170(7), New York's no-fault divorce statute. Under this provision, a spouse need only state under oath that the marriage has broken down irretrievably for a period of at least six months. The court is not required to determine fault or require proof that the parties previously obtained a judgment of separation. Once all issues involving equitable distribution, maintenance, child custody, visitation, child support, and other ancillary matters have been resolved through agreement or court order, the court may grant the divorce.

Filing under DRL §170(7) offers substantial practical benefits. Because there is no requirement to obtain a prior judgment of separation or wait an additional year before filing for divorce, the process is generally faster, less expensive, and more efficient. It also reduces unnecessary litigation by allowing the parties to focus on resolving financial and parenting issues rather than satisfying procedural requirements that no longer serve a significant purpose in most cases. The no-fault approach encourages settlement and helps reduce conflict during an already difficult period.

In conclusion, DRL §170(5) remains a valid statutory ground for divorce when spouses have lived separate and apart under a judgment of separation for at least one year. While it continues to provide a lawful path to dissolving a marriage, it is used far less frequently since the adoption of no-fault divorce. For most couples whose marriage has irretrievably broken down, filing under DRL §170(7) provides a simpler, more efficient, and less burdensome method of obtaining a divorce under New York law.

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