Posts Tagged ‘Domestic Relations Law’

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Validity of Prenuptial Agreements in New York

Sunday, March 24th, 2013

I have previously written about prenuptial agreements and issues associated with them. Generally, in New York, a prenuptial agreement may be overturned only if the party challenging the agreement sustains the burden of proof, demonstrating that the agreement was the product of fraud, duress, or it was improperly executed.

In order to prove coercion or duress, a party must establish that he or she was somehow pressured into signing the agreement.  The threat that there will be no marriage unless the agreement is signed is not duress according to numerous court decisions.  If both of the parties were independently represented by counsel, and the agreement was the product of arm’s length negotiations, it may be nearly impossible to prove that the prenuptial agreement was procured by duress.

However, a recent appellate decision, Cioffi-Petrakis v. Petrakis, 2013 N.Y. Slip. Op. 01057 (2nd Dept. 2013), broke with the long-established line of cases and upheld a Long Island judge’s decision to void an prenuptial agreement that the wife of a millionaire says she was forced into signing by false promises made by her husband-to-be, 4 days before the wedding. The wife claimed that she believed her husband to be when he told her orally that his lawyers had made him get a prenuptial agreement signed to protect his business and promised to destroy the document once they had children and put her name on the deed to the house. She also claimed that her future husband gave her an ultimatum four days before the wedding for which her father had already paid $40,000, telling her to sign the document or it wouldn’t occur.

While the appellate decision is extremely brief, the trial decision is fairly detailed and provided the facts stated above. The key factor according to the trial judge was what he called a fraudulently induced contract and detrimental reliance on the part of the wife. Fraudulent inducement was the oral promise made by the husband to be and, according to the trial court, the bride relied upon that promise. However, most agreements in New York provide that the parties are only relying on the written representations contained in the agreement, and they are not relying on promises or representations not contained in the prenuptial agreement.

This decision is unprecedented. It is likely to create a great deal of litigation in cases where a party feels that his or her prenuptial agreement is unconscionable. I also suspect that it may get appealed to the Court of Appeals.

 

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Posted in divorce, Domestic Relations Law, drafting, Family Law, New York Law, pre-nuptial agreement, procedure, Supreme Court | No Comments »

There Is No Right to Grounds Trial In A No-Fault Divorce Case

Sunday, January 6th, 2013

I have previously written on the issue of whether there was a right to trial in a divorce case brought under the no-fault grounds. Earlier, trial level decisions were split, with some courts holding that a party was still required to establish no-fault grounds at trial, and other courts holding that a sworn statement that the marriage was irretrievably broken for a period of 6 months or longer was sufficient to establish that party’s right to divorce.

Finally, the Appellate Division, Fourth Department, issued a decision resolving this issue. In Palermo v. Palermo, 2012 N.Y. Slip Op. 07528 (4th Dept. 2012), the court affirmed Justice Dollinger’s decision holding that there is no right to dispute an allegation of irretrievable breakdown under the no-fault divorce ground provided by DRL §170(7). Appellate Division agreed with the key language in Justice Dollinger’s decision which stated that:

Under DRL §170(7), the grounds cannot be disputed. Either a party swears the marriage is irretrievably broken or they do not. The grounds are established by the oath; there is no legislative requirement of a judicial finding on the reliability or veracity of the oath.

As the no-fault statute requires, in order for a judgment of divorce to be entered, all the issues relating to the divorce, including equitable distribution, maintenance, child custody and support need to be resolved before a party can be granted a divorce.

The Appellate Division’s decision in Palermo is significant since it clarifies the Legislature’s intent in creating a true no-fault divorce in New York. Further, as a result, the parties will be able to avoid costly grounds trials that usually result in added animosity between the parties.

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Posted in divorce, Domestic Relations Law, Family Law, grounds, New York Law, procedure, Supreme Court | No Comments »

Statute of Limitations and No-Fault Divorce

Monday, September 3rd, 2012

Since no-fault divorce became law in New York State almost 2 years ago, it was still unclear whether a statute of limitations would apply to to a cause of action under Domestic Relations Law §170(7), specifically, allegations that the relationship between the parties was irretrievably broken. Basically, this question can be asked in this way: from what date does the clock begin to run on this cause of action and when does the clock expire?  The answer was recently given by the Appellate Division, Fourth Department.

In a recent case, Tuper v. Tuper, 2012 N.Y. Slip Op 04467 (4th Dept. 2012), the Appellate Division held that the statute of limitations under DRL §170(7) does not begin to run while the relationship between the parties remain broken.  Specifically, the court held that a cause of action for divorce under the no-fault statute should be treated similarly to a cause of action for divorce based upon imprisonment of a spouse (DRL §170 (3), which is also governed by the five-year statute of limitations set forth in section 210).  In holding so, the Fourth Department relied upon the Court of Appeals’ decision in Covington v. Walker, 3 N.Y.3d 287, 291 (2004), which held that a cause of action for divorce based on imprisonment “continues to arise anew for statute of limitations purposes on each day the defendant spouse remains in prison for three or more consecutive years’ until the defendant is released.” The Appellate Division stated that “[l]ike a spouse serving a life sentence, an irretrievable breakdown in a married couple’s relationship is a continuing state of affairs that, by definition, will not change. After all, the breakdown is “irretrievable.” It thus stands to reason that a cause of action under the no-fault statute may be commenced at any time after the marriage has been “broken down irretrievably for a period of at least six months”.

I think that this is the correct result.  Alternatively, a contrary ruling would force a spouse to unwillingly remain in a dead marriage. If the accrual date of a no-fault cause of action were to be determined to arise only on the day that the relationship initially became irretrievably broken, assuming that an exact date could even be identified, the only couples who could get divorced under the no-fault statute would be those whose relationships irretrievably broke down within the past five years but not within the last six months. Couples whose relationships irretrievably broke down more than five years ago would have to remain married.  Clearly, the New York Legislature did not intend such result in passing the no-fault statute.

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Posted in divorce, Domestic Relations Law, Family Law, grounds, New York Law, procedure | No Comments »

A Cause of Action for DRL 170(7) Can Be Added to A Divorce Complaint Filed Prior to October 2010

Sunday, April 22nd, 2012

One of the more interesting procedural issues that arose after the New York State Legislature added a cause of action under Domestic Relations Law §170(7), irretrievably broken marriage for a period of 6 months or longer, is whether this cause of action can be introduced in divorce actions filed prior to the statute’s enactment. At least one court addressed this issue by holding that a separate action can be filed by the defendant alleging a cause of action under DRL §170(7), and the two actions can be consolidated.

A recent decision by Justice Richard A. Dollinger of the Monroe County Supreme Court,  G.C. v. G.C., 2012 N.Y. Slip Op 50653(U) (Sup. Ct. Monroe. Co. 2012), held that a defendant in a divorce action, filed prior to the enactment of the no-fault statute, can assert a counterclaim based on no-fault grounds.  Specifically, Justice Dollinger reviewed the procedural aspects related to counterclaims and analyzed whether such counterclaim would prejudice plaintiff’s substantive rights in the divorce.

The facts of the case are as follows. The plaintiff brought a divorce action prior to October 10, 2010. He alleged that his wife had engaged in cruel and inhuman treatment toward him. The wife answered the complaint, denying the specific allegations, and has stated that she would contest the grounds for the divorce.  Meanwhile the parties lived apart and the wife moved to Ohio.

The husband moved to amend the complaint to assert two new grounds: a ground under Section §170(2) for abandonment and a claim under Section §170(7) for an “irretrievably broken” marriage. The wife opposed the abandonment amendment, claiming that the husband can not allege abandonment when it occurred during a year after the filing of complaint and that its assertion, now, after the action has been pending for more than two years, is untimely and prejudicial. The wife also opposed the amendment on the grounds of Section §170(7), arguing that this recently-enact statutory amendment can not be asserted in this action because the complaint was filed prior to the effective date of the change. She argued that the husband, in order to pursue this claim, needed to file a new complaint. The husband argued that if he files the new complaint with a Section §170(7) cause of action, he could then move for consolidation under CPLR §602(a), and the cases would likely be consolidated because they involve the same facts.

CPLR §3025(b), by its express language, envisions that other causes of actions, based on developing facts that occur during the pendency of the action, can be the subject of a proposed amendment to the original compliant. The statute uses the terms “subsequent transactions or occurrences” as the basis for a proposed amendment. The statute also permits an amendment “at any time.” CPLR §3025(b).

A cause of action under Domestic Relations Law §170(2) requires allegations that a spouse’s actual physical departure from the marital residence for one year is unjustified, voluntary, without consent of the plaintiff spouse, and with the intention of the departing spouse not to return. The amended complaint, on its face, met this minimal pleading requirement since it alleged that the wife left the marital residence in 2009, has not returned and her leaving was without justification.

In October, 2010, the Legislature added a statutory change to the Domestic Relations Law which created “no-fault divorce” and permitted one party to be granted the divorce upon a sworn declaration that the marriage was “irretrievably broken for a period in excess of six months” and the parties had agreed on all the issues related to support and equitable distribution. DRL §170(7). The statutory amendment states that the “act . . . shall apply to matrimonial actions commenced after the effective date.”, specifically after October 12, 2010. The Legislature apparently intended not allow litigants to simply amend their complaints, after the amendment took effect, and allow those claims to proceed to adjudication on the basis of the new “no-fault” allegations by claiming that the six months of “irretrievable breakdown” included time before the effective date of the amendment.

After reviewing statutory history, Justice Dollinger held that the husband was not seeking any relief other than that sought in the original complaint: a divorce and accompanying property distribution. By virtue of the statutory change, the husband, having waited six months after its effective date, can now meet the time requirement of six months because all of the time accrued after the amendment took effect. Justice Dollinger further found that  the husband was merely seeking to “invoke what the Legislature extended to him: a cause of action that has ripened because more than six months have passed since the date of the amendment and during that time, the husband swears that his marriage has been irretrievably broken.”

I think that this was the right result. If a party is able to assert a cause of action under DRL §170(7), the length and expense of the case are likely to be reduced since a trial on the issue of grounds will no longer be required.  This is likely to result in shorter and less costly divorce cases.

 

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Posted in divorce, Domestic Relations Law, Family Law, grounds, New York Law, procedure, Supreme Court | No Comments »

Parent’s Obligation to Pay for College Is Not Limited To Cost of SUNY Education Unless Proven Otherwise

Sunday, November 13th, 2011

In Pamela T. v. Marc B., 2011 N.Y. Slip. Op. 21355 (N.Y.Sup.2011), the court had to decide whether the parent’s obligation to pay for college should be limited to the so-called “SUNY cap”. The Supreme Court concluded that parent’s argument that before a parent can be compelled to contribute towards the cost of a private college, there must be a showing that a child cannot receive an adequate education at a state college, has no basis in the law.

The parties were divorced on December 23, 2008 and have two sons, 18 and16 years old. Their judgment of divorce was silent as to the payment of the children’s college tuition and expenses.

In 2007, the older child was diagnosed with emotional and learning/anxiety disorders, which resulted in certain educational accommodations. Despite his disabilities, he graduated in 2011 from a selective public high school in Manhattan. He was accepted at Syracuse University, SUNY Binghamton and SUNY Buffalo, as well as other schools. The costs of college education varied from Syracuse at approximately $53,000 a year to attend, to SUNY Binghamton and SUNY Buffalo that cost about $18,000 a year. The child decided to attend Syracuse which he is now attending as a freshman.

The both parents are practicing attorneys in New York City. Plaintiff’s 2010 federal income tax return reported adjusted gross income of $109,896. Defendant’s 2010 federal income tax return reported adjusted gross income of $105,135. Plaintiff’s net worth statement showed she had assets of approximately $1,230,000. Defendant’s net worth statement showed he had assets of approximately $580,000. Both plaintiff and defendant went to private undergraduate colleges and law schools.

Defendant did not oppose an order directing him to contribute to his older child’s college education, but he requested that the court to apply the SUNY cap and limit his responsibility to a percentage of the costs of a state university education rather than to a percentage of a private college education. Defendant’s position was based on his claim that he was unable to meet the financial demands of paying for private college and on his belief that his son could receive as good an education at SUNY Binghamton as he could at Syracuse.

The court stated that Domestic Relations Law 240(1- b)(c)(7) gave the courts of this state the authority to “direct a parent to contribute to a child’s private college education, even in the absence of special circumstances or a voluntary agreement. The statute provides that when a court exercises its discretion to direct such a contribution from a parent, it is to do so “having regard for the circumstances of the case and the parties, the best interests of the child, and the requirements of justice.” The courts interpreted the provisions of DRL 240(1-b)(c)(7) by setting forth specific factors that are to be considered in determining whether to award college expenses. These factors include the educational background of the parents and their financial ability to provide the necessary funds, the child’s academic ability and endeavors, and the type of college that would be most suitable for the child.

The Court stated that DRL 240(1-b)(c)(7) does not provide for a SUNY cap. The SUNY cap appeared in a number of decisions rendered since the enactment of the statute. These cases have not provided an explanation as to when a SUNY cap might be properly applied over the objection of the parent who is seeking an award for college expenses.

The court found that Berliner v. Berliner, 33 A.D.3d 745, 749 (2d Dept. 2006) was instructive because in that case the Second Department stated that there “is no basis in this record” for imposing the SUNY cap implied that the burden falls on the proponent of the cap to demonstrate that it is warranted. The inference to be drawn is that there is no presumption that a parent’s obligation to pay for college is to be limited to the cost of a SUNY education unless proven otherwise; if anything, the presumption goes the other direction. It was also instructive because the decision’s reference to the “so-called SUNY cap” implied that even the Second Department views the SUNY cap as something less than an established doctrine.

The court rejected defendant’s argument that plaintiff be required to prove that Syracuse was a better school than SUNY Binghamton, in order for him to be required to pay Syracuse’s higher expenses. The decision noted that it is difficult to conceive of a workable procedure, let alone a methodology, for a court to make a finding that one college is “better” than another. The court found that there was sufficient showing to support the child’s choice of Syracuse, irrespective of whether it is ranked lower, higher or the same as SUNY Binghamton or any other SUNY school. If there are funds are available to finance the child’s education, the fact that Syracuse was a private school and cost more than a public school was not a reason to interfere with the child going to the school he chose and he wanted to attend.

The court further held that one of the factors to be considered when making a determination under DRL 240(1-b)(c)(7) is the parents educational background. Inasmuch as plaintiff attended Northwestern and defendant attended Columbia, the court could reasonably assume that there would exist an expectation in the family, and in the child himself, that he too could attend a private college.

Having found that defendant had to contribute to his son’s education at Syracuse University, the court had to consider the defendant’s ability to pay. It was defendant’s position that even though plaintiff may have the means to pay the high cost of their son attending Syracuse, he lacked the means to do so. Consequently, he argued that he should have to pay no more than $9,000 a year towards his son’s education, an amount that is roughly 50% of the present annual cost of a SUNY school.

The court rejected defendant’s contention as to his inability to pay a significant share of the child’s actual educational expenses being incurred at Syracuse. The court held that the parties’s incomes and assets would allow them to pay for their child’s education at Syracuse.

The court further held that there was no basis to impose the SUNY cap, to the extent that it should be imposed at all, where the party seeking to invoke the cap has the financial ability to contribute towards the actual amount of his or her child’s college expenses. Although defendant’s contribution should be less than plaintiff’s, based on the difference between their net assets, and in particular what each of them had available for eventual retirement, that contribution should not be subject to some artificial construct like the SUNY cap. On this basis, the court held that defendant shall be obligated to contribute 40% of the total cost of the older child attending Syracuse University, with those costs to include tuition, room and board, fees and books.

Thus, this decision confirms that if a parent is hoping to place a limit on future college costs, it is very important to include provisions in the parties’ separation agreement or settlement stipulation placing an upper limit on such costs.

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Posted in child support, Child Support Standards Act, college expenses, court orders, Domestic Relations Law, Family Law, New York Law, Supreme Court | No Comments »

Same Sex Marriage Bill Passes in New York

Monday, July 4th, 2011

On June 24, 2011, New York Senate voted, 33-29, to give final approval to a bill, A-08354, that recognizes same sex marriage in New York. Govenor Andrew M. Cuomo immediately signed the bill which will become effective in 30 days.

The bill, codified as the Marriage Equality Act amends the Domestic Relations Law to provide:

• A marriage that is otherwise valid shall be valid regardless of whether the parties to the marriage are of the same or different sex

• No government treatment or legal status, effect, right, benefit, privilege, protection or responsibility relating to marriage shall differ based on the parties to the marriage being the same sex or a different sex

• All relevant gender-specific language set forth in or referenced by New York law shall be construed in a gender-neutral manner

• No application for a marriage license shall be denied on · the ground that the parties are of the same or a different sex

Under the bill, the rights under same-sex marriage will include:

• Employer-sponsored health insurance.

• Equitable property distribution, maintenance, custody and visitation if the couple divorces.

• A presumption that a child in a dissolved marriage is the child of both parents.

• Statutory inheritance rights.

• The right to bring a claim for the wrongful death of a spouse.

• The right to seek Workers’ Compensation death benefits.

• The spousal privilege in legal proceedings.

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Posted in Domestic Relations Law, New York Law, same sex marriage | No Comments »

Statute of Limitations and QDROs

Saturday, June 11th, 2011

One of the questions that I was asked several times during the last year was whether there is a statute of limitations applicable to Qualified Domestic Relations Orders (QDROs)? This question usually come up in situations where one former spouse was entitled to a portion of the other former spouse’s retirement benefits, however, the QDRO was never done, and a substantial period of time has passed. If there was an applicable statute of limitations, the former spouse who has failed to act would lose his or her right to collect a portion of the former spouse’s retirement.

However, a couple of recent decisions made it clear that with respect to QDROs, there is no applicable statute of limitations and a QDRO can be submitted to the court at any time. In Denaro v. Denaro, 2011 N.Y. Slip. Op. 04409 (2nd Dept 2011), the Appellate Division, Second Department, held that “the statute of limitations does not bar issuance of the QDRO.”  Relying on Bayen v Bayen, 81 A.D.3d 865 (2nd Dept. 2011), the court held that ”[M]otions to enforce the terms of a stipulation of settlement are not subject to statutes of limitation… [B]ecause a QDRO is derived from the bargain struck by the parties at the time of the judgment of divorce, there is no need to commence a separate action in order for the court to formalize the agreement between the parties in the form of a QDRO”. Id. (citations omitted.)

While I would not recommend to anyone delaying preparing and submitting a QDRO, any such submission is not going to be barred by a statute of limitations. At the same time, any late submission is likely to cause another set of problems if the retirement asset is in pay status  and payments are being made to the other spouse.

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Posted in court orders, divorce, Domestic Relations Law, equitable distribution, Family Law, New York Law, QDRO, Settlement Agreements, Stipulations, Supreme Court | No Comments »

Tax Implications in Divorce – Need for Trial Evidence

Sunday, June 5th, 2011

One of the issues that frequently comes up in divorce is cases has to do with tax implications of the divorce action.  Tax issues may involve dependency exemptions, or may involve issues dealing with allocation of taxes on income or assets subject to equitable distribution.  The courts have addressed these issues in the past and have always required some admissible proof with respect to tax implications of the relief sought in the divorce action. However, some parties still fail to present admissible trial evidence that would allow the court to make decisions allocating tax liabilities, if any.

In Bayer v. Bayer, 80 A.D.3d 492 (1st Dept. 2011), the Appellate Division had to address whether the trial court properly disregarded the tax consequences impacting plaintiff’s receipt of fifty percent of monies which defendant had earned in the fiscal quarter preceding commencement of the divorce action.  The Appellate Division held that since defendant failed to present evidence from which the court could determine the amount of such taxes, the trial court acted properly.  The Appellate Division relied upon D’Amico v. D’Amico, 66 A.D.3d 951 (2nd Dept. 2009).  In D’Amico, the court held that “[W]hile this court has recognized that the value of a pension should be discounted by the amount of income tax required to be paid by a party, where the party seeking the discount fails to present any evidence from which the court could have determined the dollar amount of the tax consequences, the computation of the award without regard to tax consequences will be deemed proper”. (citations omitted)

Therefore, if there are tax issues associated with dependency exemptions, maintenance, retirement assets or equitable distribution, in order to have trial court consider those issues , a party must present admissible evidence of any tax consequences that may result. If a party fails to do so, the trial court will not consider any tax implications. As a result, a party seeking the court’s decision with respect to tax issues will have to present expert testimony of an accountant who would be able to present admissible evidence of any tax implications.

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Posted in divorce, Domestic Relations Law, equitable distribution, evidence, Family Law, maintenance, New York Law, Supreme Court, taxes | No Comments »

Downward Modification of Child Support, Scope of Job Search and Custody Issues

Sunday, May 8th, 2011

I have previously written about downward modification of child support in a situation where the payor has lost his job or experienced a significant reduction in his income. Recently, I was personally involved in a case which also involved custody issues that directly impacted payor’s job search and were raised as a defense to an argument that the job search was insufficient. While I almost never write about cases while they are still pending, in this case, an article about the decision was published in the paper serving Rochester legal community, and I think that it is interesting one, because of the interplay between the child’s need for support and parent’s wish not to search for a job outside of his present community.

In Szalapski v. Schwartz n/k/a Szalapski, Justice Richard A. Dollinger had to decide whether an unemployed parent with support obligations must clearly make a diligent job search limited to the Rochester area, or expand it beyond Rochester. Mr. Szalapski, who lost his employment earning six-figure income a number of months ago, brought a downward modification obligation claiming that despite his diligent job search, he was unable to find a comparable job and his income for child support purposes should be reduced to $15,000 per year. Mr. Szalapski has a number of advanced science and engineering degrees, and has held both teaching and industry positions. When Ms. Schwartz raised an argument that Mr. Szalapski was obligated to search for a job outside of Rochester area, Mr. Szalapski claimed that because of the parties’ custodial and visitation arrangements, and his involvement in one of his children’s life, he did not have to search for employment beyond 60 mile radius from his present residence. As result, the court had to address the apparent tension between the children’s need for support and the parent’s wish to maintain existing relationship with his child. Mr. Szalapski argued that if he is forced to accept a job some distance away from Rochester, his relationship with his son would be negatively impacted.

The court ruled that a potentially high earning plaintiff such as Mr. Szalapski, who is seeking modification, should be required to examine the prospects of employment in another area before the court substantially reduces his child support obligation. “New York law is strangely silent on this issue and, based on this court’s research, the question of the ‘radius of a reasonable job search’ has been seldom analyzed in the Empire State,” Justice Richard A. Dollinger wrote in the decision. “In essence, the husband [plaintiff] must prove that the benefit of the increased support, occasioned by finding a job in a new location, would be outweighed by the deleterious impact on his relationship with his son and that no alteration in the visitation schedule could accommodate his visitation with his son.” The court suggested that a high paying job (in excess of $100,000) in a nearby city such as New York, Boston, Cleveland or Washington, D.C., may be able to accommodate a visitation schedule that requires a short airplane flight.

“The paramount importance of maintaining the child’s standard of living is what drives the need for a diligent job search when an obligated parent loses their employment,” Justice Dollinger wrote. “In this court’s view then, the scope of the job search should extend beyond the convenience of either parent, and reach to a point where the benefit of employment in a new more distant location outweighs the consequence s of distance on the relationship between the parent and child” the justice continued. The court noted that the burden of  establishing whether the job search was adequate rests with the plaintiff seeking modification to prove “diligent search for employment” and ordered a hearing on the adequacy of his job search.

I think that this is an interesting decision and that Justice Dollinger did an excellent job addressing both sides of this factual scenario. As far as hearing, it is still in the future.

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Posted in child support, Child Support Standards Act, court orders, Domestic Relations Law, Family Law, imputed income, modification, New York Law, Supreme Court | No Comments »

Can a Divorce on No-Fault Grounds Be Opposed?

Saturday, April 9th, 2011

One question that so far has not been resolved with any degree of certainty by the courts is whether in a divorce action brought pursuant to the new no-fault divorce statute requires specific proof that the parties’ marriage was irretrievably broken for a period of six months or longer. It is an important question since in the past divorce attorneys were able to challenge grounds for divorce and force plaintiffs to establish that there were adequate grounds for divorce. In a significant number of cases, grounds trials were held for economic reasons, i.e., the monied spouse did not want to divide assets and/or pay spousal maintenance.

Six months after the no-fault statute was enacted by the New York’s legislature, we are learning that the courts are divided on this issue, with some courts requiring proof that the marriage was actually irretrievably broken for a period of six months or longer, and with some courts holding that there is no defense to the no-fault grounds.

In Strack v. Strack, 2011 N.Y. Slip. Op. 21033 (Sup. Ct. Essex Co. 2011), the court held that the question of whether the marriage was irretrievably broken was a question of fact requiring a trial.

The facts in Strack are as follows. The parties were married on May 25, 1963 and plaintiff sought a divorce based upon the no-fault grounds contained within Domestic Relations Law §170 (7). Defendant moved to dismiss the complaint, contending (1) that the complaint lacked specificity; (2) that the conduct alleged in the complaint was barred by the five-year statute of limitations; and (3) that the complaint failed to state a cause of action for divorce under Domestic Relations Law §170 (7).

Effective relative to actions commenced on or after October 12, 2010, Domestic Relations Law §170 (7) permits divorce where “[t]he relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath.” This additional ground for divorce has given parties the option of securing a divorce without alleging fault.

Here, the allegations in the complaint were as follows:

The relationship between husband and wife has broken down such that it is irretrievable and has been for a period of at least six months. For a period of time greater than six months, Defendant and Plaintiff have had no emotion in their marriage, and have kept largely separate social schedules and vacation schedules. Each year Plaintiff and Defendant live separately throughout most of the winter months. Though they share the residence for several months out of the year, Plaintiff and Defendant have not lived as husband and wife for a period of time greater than six months. Plaintiff believes the relationship between she and Defendant has broken down such that it is irretrievable and that the relationship has been this way for a period of time greater than six months.

Having decided that the above allegations stated a cause of action and were not barred by the statute of limitations, the court stated that Domestic Relations Law §170 (7) is not a panacea for those hoping to avoid a trial. Rather, it is simply a new cause of action subject to the same rules of practice governing the subdivisions which have preceded it. By referring to Domestic Relations Law §173 which provides that “[i]n an action for divorce there is a right to trial by jury of the issues of the grounds for granting the divorce” and, here, the Legislature failed to include anything in Domestic Relations Law §170 (7) to suggest that the grounds contained therein are exempt from this right to trial.  The court further held that since the phrase “broken down such that it is irretrievable” is nowhere defined in the statute, the determination of whether a breakdown of a marriage is irretrievable is a question to be determined by the finder of fact.

In a more recent decision, A.C. v. D.R., 2011 N.Y Slip. Op. 21113 (Sup. Ct. Nassau Co. 2011), the court held that once the plaintiff makes a sworn allegation that the marriage had irretrievably broken down, a trial not required, and there is no defense to the action. The court held that the only requirement to satisfy the no-fault ground for divorce is a party’s sworn statement alleging that the marriage has irretrievably broken down. Specifically, the court stated:

It is sufficient that one or both of the parties subjectively decide that their marriage is over and there is no hope for reconciliation.  In other words, a plaintiff’s self-serving declaration about his or her state of mind is all that is required for the dissolution of a marriage on grounds that it is irretrievably broken.

As the no-fault statute requires, in order for a judgment of divorce to be entered, all the issues relating to the divorce, including equitable distribution, maintenance, child custody and support need to be resolved before a party can be granted a divorce.

While I am not aware of the court decisions on this issue here in Rochester, I hope that the courts will grant divorce solely on the party’s subjective allegation that the marriage has irretrievably broken down. Since the trial courts are split on the issue, it is likely that appellate courts will have to address this issue eventually.  I hope that the holding of the more recent case will be widely adopted follwint he Legislature’s intent in creating a true no-fault divorce in New York.

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Posted in divorce, Domestic Relations Law, Family Law, grounds, New York Law, Supreme Court | No Comments »

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