Archive for the ‘marital fault’ Category

No-Fault Divorce Becomes Law In New York

Sunday, August 15th, 2010

The no-fault divorce bill has been signed by the Governor Patterson and will go into effect in 60 days.  That means that starting on October 13, 2010, someone who wants to be divorced in New York will no longer be required to make allegations of martial fault by the other spouse and will only be required to swear that the relationship between husband and wife has  broken  down  irretrievably  for  a period of at least six months.  The new law will apply to the divorce actions commenced on or after such effective date.

In addition, the Governor signed legislation that will revise the process for setting awards of temporary maintenance while a divorce is pending, by creating a formula and list of factors that would presumptively govern such awards. This would allow for speedy resolution of the maintenance issue, and prevent less well-off parties to divorce proceedings from falling into poverty during litigation, because they lack the resources to obtain a temporary maintenance order. Another bill would create a presumption that a less monied spouse in a divorce case is entitled to payment of attorneys’ fees. Under current law, a party that cannot afford to secure representation in a divorce proceeding must make an application for fees at the end of the process, which can force a poor individual to proceed without a lawyer, or to surrender on important issues due to lack of means. Provisions of the Domestic Relations Law related to temporary maintenance and attorneys fees will go into effect in 60 days as well.

These are important development in New York’s family law and I think that it will take some time to assess their impact.  At the same time, I think that they will be welcomed by divorce lawyers in this state and will make divorce easier for the divorcing spouses. With respect to the bill establishing the formula for temporary maintenance, it is highly likely that any such temporary maintenance award is going to be used by the courts as a basis for a permanent maintenance award.

Can Social Abandonment By A Spouse Be Sufficient As Grounds For Divorce?

Saturday, November 21st, 2009

While New York continues to be the last state that insists upon fault-based divorce, that has not stopped various attempts to broaden present grounds for divorce available under the Domestic  Relations Law.  In a recent decision, Davis v. Davis, 2009 N.Y. Slip. Op. 08579 (2nd Dept. 2009), the Appellate Division, Second Department, held that “social abandonment” of one spouse by the other, does not meet the definition of constructive abandonment, and can not be used as grounds for divorce.  This case demonstrates why divorce lawyers and their clients, here in Rochester and elsewhere in New York, can be in situation where they cannot get their clients divorced, despite significant breakdowns in marital relationships.

In Davis, the wife alleged that the husband refused to engage in social interaction with the wife by:

refusing to celebrate with her or acknowledge Valentine’s Day, Christmas, Thanksgiving, and the wife’s birthday, by refusing to eat meals together, by refusing to attend family functions or accompany the wife to movies, shopping, restaurants, and church services, by leaving her once at a hospital emergency room, by removing the wife’s belongings from the marital bedroom, and by otherwise ignoring her.  The parties have been married for 41 years and they reside at the same address.

The above claims were included as a part of the wife’s cause of action for constructive abandonment.  The husband filed a pre-answer motion pursuant to CPLR §3211(a)(7) to dismiss the constructive abandonment cause of action and, alternatively, moved for summary judgment dismissing that cause of action. The husband, while contesting many of the wife’s factual allegations of “social abandonment,” argued that the complaint fails to state a cause of action for a divorce based on “constructive abandonment.”

Domestic Relations Law §170 sets forth six statutory grounds on which a spouse may seek to divorce another. The abandonment ground for divorce, set forth in Domestic Relations Law §170(2), provides that an action for a divorce may be maintained based upon “[t]he abandonment of the plaintiff by the defendant for a period of one or more years.”   The essence of abandonment is the refusal of one spouse to fulfill “basic obligations springing from the marriage contract”.  The court noted that a viable cause of action under Domestic Relations Law §170(2) has been recognized in three different factual forms: (1)  a defendant spouse’s actual physical departure from the marital residence that is unjustified, voluntary, without consent of the plaintiff spouse, and with the intention of the departing spouse not to return; (2) the defendant spouse locks the plaintiff spouse out of the marital residence, absent justification or consent;  (3) “constructive abandonment,” which has been defined as the refusal by a defendant spouse to engage in sexual relations with the plaintiff spouse for one or more years prior to the commencement of the action, when such refusal is unjustified, willful, and continual, and despite repeated requests for the resumption of sexual relations.

the complaint alleges that the husband refused to engage in social interaction with the wife by refusing to celebrate with her or acknowledge Valentine’s Day, Christmas, Thanksgiving, and the wife’s birthday, by refusing to eat meals together, by refusing to attend family functions or accompany the wife to movies, shopping, restaurants, and church services, by leaving her once at a hospital emergency room, by removing the wife’s belongings from the marital bedroom, and by otherwise ignoring her. The parties have been married for 41 years and they reside at the same address.
The husband filed a pre-answer motion pursuant to CPLR 3211(a)(7) to dismiss the constructive abandonment cause of action and, alternatively, moved for summary judgment dismissing that cause of action pursuant to CPLR 3212. The husband, while contesting many of the wife’s factual allegations of “social abandonment,” argued that the complaint fails to state a cause of action for a divorce based on “constructive abandonment.” The wife opposed dismissal arguing, [*2]inter alia, that social abandonment has been recognized as a ground for divorce in fairly recent trial-level decisions rendered by the Supreme Courts in Nassau, Queens, and Westchester Counties.

After analyzing the applicable case law and plain language of the statute, the Appellate Division concluded that the plaintiff’s allegations of social abandonment may appropriately be viewed as merely another way of claiming “irreconcilable differences” between spouses, that do not constitute a cognizable ground for divorce. The plaintiff’s allegations of a “social abandonment,” designed to mimic the abandonment language of Domestic Relations Law §170(2), “elevated the artificial title of the claim over the substance of the causes of action that are statutorily recognized and understood.”

The Appellate Division further noted that there are several reasons why the courts have not recognized social abandonment as a cognizable ground for divorce, including the longevity of the current definitional understanding of constructive abandonment; its concern for a judicial usurpation of legislative authority; the fact that a social abandonment of one spouse by another is a provision of the marriage contract that necessarily equates with a spouse’s refusal to engage in sexual relations.; and the practical difficulties associated with trying to define a social abandonment cause of action, and of how courts might conceptualize the cause as separate and distinct from traditional notions of constructive abandonment.  In court’s view, “social abandonment” cannot be easily defined and therefore defies consistent and easily applied definitional interpretation, resulting in the courts examining the conduct of couples on a case-by-case basis, and presenting significant variations as to “the degree of social interaction involving family events, meals, holidays, religious activities, spousal expectations, cultural differences, and communications.”

The Davis case is just one more illustration of the fact that New York needs to abandon its fault-based grounds for divorce.  No-fault divorce would significantly reduce divorce litigation and make clients’, and attorneys’, lives less frustrating.  Unfortunately, the New York Legislature has not shown much interest in this issue over the years.  What is also interesting, is that the Second Department’s position in Davis appears to be contrary to the Third Department’s position in Dunne v. Dunne, 47 A.D.3d 1056 (3rd Dept. 2008), discussed in an earlier post, which held constructive abandonment has taken place in a situation where one spouse took an uncompromising position that plaintiff choose to either adhere to the advice of his treating physicians or cease taking his anxiety medication in order to return to the marital residence, thereby risking his well-being. If forcing a party to choose between taking a medication and returning to the marital residence amounted to “an unreasonable condition as a term of their relationship,” which violated marital obligation to the husband, I believe that a refusal to participate in various activities with the spouse represents a similar violation of marital obligation.

Divorce, Equitable Distribution and Marital Fault

Sunday, April 19th, 2009

I am often asked whether as a lawyer, I am able to persuade the court to divide the parties’ assets unequally in situations where one of the parties had an affair, engaged in some acts of domestic violence, or committed repeated acts of verbal and emotional abuse. In nearly every case, my response is that in most of the cases, marital fault is irrelevant to the equitable distribution issues.

The New York State Legislature, in 1980, enacted the Equitable Distribution Law (“EDL”) (codified as Domestic Relations Law § 236 B). The adoption of which had been advocated because the traditional common law theory of property resulted in inequities upon the dissolution of a marriage. The EDL was premised on the entirely new theory that a marriage is an economic partnership to which both parties contribute as spouse, wage earner or homemaker, and mandates the equitable distribution of marital assets based upon the circumstances of each particular case. Under the EDL, the distribution of marital assets depends not only on the financial contribution of the parties but also on a wide range of non-enumerated services to the joint enterprise, such as homemaking, raising children and providing the emotional and moral support necessary to sustain the other spouse in coping with the vicissitudes of life outside the home. Domestic Relations Law §236(B)(5)(d) lists 13 factors to be considered when making an equitable distribution award, which factors encompass, among other things, the income and property of each party at the time of the marriage and at the time the divorce action was commenced, the duration of the marriage, the age and health of the parties, a maintenance award if one had been issued, and the non-titled spouse’s direct or indirect contributions to the marriage.

It is now recognized that marital fault may be taken into account under the EDL’s “catchall provision,” which allows for the consideration of “any other factor which the court shall expressly find to be just and proper” (DRL §236[B][5][d][13]). The criteria which must be considered when evaluating whether marital fault should play a role in any particular case were first stated by the Appellate Division, Second Department, in Blickstein v. Blickstein, 99 A.D.2d 287, appeal dismissed, 62 N.Y.2d 502 (1984), which stated that the “marital misconduct [must be] so egregious or uncivilized as to bespeak of a blatant disregard of the marital relationship – misconduct that shocks the conscience’ of the court thereby compelling it to invoke its equitable power to do justice between the parties” (Id. at 292). This guideline was explicitly adopted by the Court of Appeals in O’Brien v. O’Brien, 66 N.Y.2d 576, 589-590 (1985).

In McCann v McCann, 156 Misc.2d 540 (Sup. Ct. 1993), the court addressed issues of marital misconduct. In McCann, a husband had married with the express promise to his wife to make every effort to have children. He subsequently refused to fulfill that promise after several years of lying, and as a result his wife became infertile because of her advanced age. The court found that, while the husband’s misconduct showed “a blatant disregard for the marital relationship” and was “morally reprehensible,” it did not constitute egregious marital conduct sufficient to be considered in equitably distributing the marital assets. To be deemed egregious, the court concluded, conduct must “callously imperil[] the value our society places on human life and the integrity of the human body”.

The only cases in which reprehensible behavior has been deemed to constitute egregious fault sufficient to affect equitable distribution have involved extreme violence. In Havell v. Islam, 301 A.D.2d 339 (1st Dept. 2002), for example, the Appellate Division, First Department upheld the matrimonial court’s award of more than 95% of the marital estate to a wife where her husband beat her with a barbell and a piece of pipe, thereby breaking her nose, jaw and some of her teeth, causing multiple contusions and lacerations, along with neurological damage and other serious injuries. While the husband pleaded guilty to first-degree assault on his wife, the First Department accepted the lower court’s finding that the husband’s attack amounted to attempted murder and constituted egregious marital fault. Egregious fault has also been found in instances of rape, kidnapping , and protracted and severe physical abuse.

Conversely, conduct that courts have found not to be egregious include adultery , alcoholism, abandonment , and verbal harassment coupled with several acts of minor domestic violence.

A recent example of how high this standard is set, was demonstrated in Howard S. v. Lillian S., 2009 N.Y. Slip Op 01880 (1st Dept. 2009). In Howard S., the wife allegedly misrepresented to her husband that he was the biological father of one of their children, when in fact the child was conceived during her adultery and fathered by her lover.

The husband married the wife in May 1997 and they had four children. In February 2004, the wife had an extramarital affair with an unnamed man and became pregnant with a child, who was born in December 2004. Husband contends that the wife knew or should have known that husband was not the child’s biological father, but concealed that information from him.

According to the complaint, in February 2007, the wife began another affair which “continues to this day.” Wife also concealed this second adulterous relationship from husband, but in the spring of 2007, suggested that they separate and enter into a collaborative law process.

During this period husband had become suspicious about child’s parentage, allegedly due to all the jokes within the circle of family and friends that the child looked nothing like him. Without telling his wife, the husband, in February 2008, arranged for a DNA test of himself and the child. The test confirmed that he was not the child’s biological father. The wife now acknowledges that husband is not the child’s biological father, but claims that she learned this from the DNA test results and denies that she deliberately concealed the truth about the child’s parentage from her husband.

The divorce complaint filed by the husband asserted causes of action for divorce based on both cruel and inhuman treatment and adultery, and asserts a separate claim based on fraud. As damages for the fraud claim, husband seeks to recover his child support expenses for the child, the fees for the parties’ collaborative law process, and profits from the couple’s investments from the time of child’s conception until the commencement of the divorce action.

In May 2008, husband moved for “expanded discovery” to prove “defendant’s egregious fault,” the fraud claim, and her lack of contribution to and dissipation of the marital property. The lower court limited the recoverable damages to husband’s share of the fees for the collaborative law process. The court also denied the husband’s request for expanded discovery as to wife’s marital fault on the ground that her alleged misconduct did not constitute egregious fault and had no bearing on prospective spousal maintenance and equitable distribution. The husband appealed on the grounds that the court (1) erred by holding that he had failed to state a claim for egregious fault and (2) erred by holding that he could not recover child support payments and certain real estate investments as damages for his fraud claim.

The Appellate Division held that while the wife’s alleged misconduct could not be condoned and was clearly violative of the marital relationship, it did not rise to the level of egregious fault, since she neither endangered the lives or physical well-being of family members, nor deliberately embarked on a course designed to inflict extreme emotional or physical abuse upon them.

In view of the cases cited above, this result was almost certain from the beginning. As painful and harmful lies and deceit in a marriage may be, and Howard S. is as egregious of a case as I have ever seen, unless there was a significant violence between the parties, the court would not alter equitable distribution on the basis of marital fault. At the same time, New York’s equitable distribution principles do not require equal distribution, if other factors of the EDL can be satisfied. If you in a situation where you are dealing with these issues, and considering divorce, I suggest that you speak with an experienced New York divorce lawyer.