Question #170: Hi, I and my husband are both residents of NY. We’ve been married for 3 months and have a 9-month-old child. I am not sure if I can qualify for the grounds to be divorced – I have been verbally and physically abused but never filed a complaint and have no police report. There are only couple of pictures of bruises on my face taken by me in the beginning of the year. I know that my husband will not agree to divorce. We currently stay together but do not communicate. Is there a way to make him leave the apartment (it’s under my name)? And do I have a chance to get divorced? If we stay together for a year but don’t have intimacy will it be considered as grounds? How can I prove that we aren’t close? Will the child stay with me?

If you have been verbally and physically abused during these three months of marriage and can convincingly testify to the court as such, you will have grounds for cruel and inhuman treatment in New York. The pictures, if authentic, and were taken at the time of the incident, will also be helpful. If there are any witnesses or others who can testify to support your claim of physical abuse that will also be helpful. A police report is not required though helpful.
If you are being physically abused you should not stay in such a relationship. No one should subject himself or herself to physical abuse at any time.
You cannot use grounds for not having intimacy, legally referred to as “constructive abandonment”, if you are the one who is refusing to have sexual relations.
Your testimony will be the proof, and it will depend on whether the judge believes you are not.
With regard to the custody of the child, generally, a child of nine months will be left with the mother unless there is some unusual circumstance that require otherwise.
If you living in the New York City metropolitan area, I strongly suggest that you call me at 212-370-1660 to arrange for an appointment to discuss the matter at greater length.

Leonard M. Weiner, Esq./Divorce Solutions