I have previously written how New York’s fault system of divorce which requires the parties to satisfy grounds requirements tends to result in unneeded matrimonial litigation and, in some case, leave the parties married despite the fact that the marriage died many years ago. A recent decision brought a new twist on an all too common situation.
In Andrew T. v Yana T., 2009 N.Y. Slip. Op. 29530 (Sup. Ct. N.Y. Co. 2009), the parties were married in in 2006. In September of 2007, the plaintiff husband brought a divorce action on the grounds of constructive abandonment. On March 19, 2008, defendant-wife gave birth to a baby boy. This event not only predated the divorce judgment dissolving the parties’ marriage, but was prior to defendant having signed her affidavit and the parties having entered their separation and property settlement agreement. According to plaintiff, he was never aware that defendant was pregnant and he only learned about the child after the parties were already divorced. There was no father listed on child’s birth certificate.
Once plaintiff learned of the existence of the child, he petitioned the court for an order directing paternity testing. Defendant opposed the motion contending that the child, who was not born until March 19, 2008, cannot possibly be plaintiff’s. Defendant further argued that if plaintiff is taking the position that the child is plaintiff’s child, this means that the sworn statements in his verified complaint concerning the lack of sexual relations with defendant must be untrue. As a result, defendant cross-moved for an order finding that plaintiff has violated Penal Law section 210.10, perjury in the second degree.
Defendant’s argument was predicated on the fact that with respect to plaintiff’s cause of action for constructive abandonment, plaintiff alleged in his verified complaint “that commencing on or about August 1, 2006, and continuing for a period of more than one (1) year immediately prior to commencement of this action, the defendant refused to have sexual relations with the plaintiff despite plaintiff’s repeated requests to resume such relations.” The complaint stated that there were no children of the marriage. Defendant had neither interposed an answer to the complaint nor in any other way sought to contest the divorce. Instead she provided plaintiff with an affidavit in which she admitted service of the summons and complaint “based upon the following grounds: constructive abandonment DRL §170(2).”
Following the execution of defendant’s affidavit and the parties’ agreement, plaintiff promptly placed the case on the uncontested matrimonial calendar for submission. This meant that neither party had to appear in court to give testimony because the application for the divorce judgment was to be decided on the papers alone. On July 29, 2008, a judge signed the judgment dissolving the marriage between the parties by reason of the constructive abandonment of plaintiff by defendant. The judgment stated that there are no known children of the marriage and none are expected.
While defendant’s argument was creative, the trial court judge did not accept it, pointing out that the defendant has not presented any evidence to exclude plaintiff as defendant did not present any evidnce other than relying on plaintiff’s verified complaint.
In addition, the court stated that the presumption of legitimacy, the child’s best interests and plaintiff”s request for paternity testing were interrelated. Plaintiff was already presumed to be child’s father by virtue of having been married to the child’s mother when the child was born. The child’s best interests lie in having his parentage confirmed, his father’s name listed on his birth certificate, and his rights and status attendant to the father-son relationship fully established. A positive paternity test would provide the means by which any doubt as to whether plaintiff is the child’s father.
With respect to defendant’s cross-motion seeking a finding that the plaintiff committed perjury, a felony, the court stated the following:
Suffice it to say that if the District Attorney was intent on prosecuting all the people who, within the context of uncontested divorce proceedings, falsely claim not to have had sexual relations with their spouses, there would be little time left for pursuing other crimes. As with a revelation that a husband or wife has committed the crime of adultery by having had sex outside the marriage, there are instances of wrongdoing that do not demand the attention of the People of the State of New York in order to keep our society safe and secure. This is one of them.
The court further addressed New York’s lack of no-fault divorce in rather strong terms:
If New York was like every other state, even those that some might think of as legally and socially backward, and had a true no-fault ground for divorce, such as “irreconcilable differences” ( Mississippi) or “incompatibility” (Oklahoma), the situation here, as difficult as it already is involving a battle over a child, could have been that less complicated. This is because plaintiff would never have had to make the representations that he did about his sex life with defendant just so a New York court could free the parties from a marriage that neither side wished to continue.
Unfortunately, our state, which prides itself on being so forward-thinking in so many ways, is positively regressive as concerns the institution of marriage. When it comes to forming the marriage bond, we do not allow loving, consenting adults who happen to be of the same sex to enjoy the same rights as others. When it comes to dissolving the marriage bond, we do not allow no-longer-loving, consenting adults to obtain a divorce for reasons that are real rather than fabricated so as to meet some archaic legal requirement. It is clearly time for the Empire State, as it is known, to reject a view of marriage that is more reflective of the time of the Empire of Queen Victoria than it is of the second decade of the 21st Century and at long last adopt the reforms that bar associations and citizens groups of all kinds have been demanding for years. Until that happens, the integrity of our legal system here in New York will continue to be needlessly compromised.
defendant contends that the child, who was not born until March 19, 2008, cannot possibly be his. Defendant further submits that if plaintiff is taking the position that Ethan is his child, this means that the sworn statements in his verified complaint concerning the lack of sexual relations must be untrue. As a result, defendant cross-moves for an order finding that plaintiff has violated Penal Law section 210.10, perjury in the second degree.
FACTS
The parties were married on July 1, 2006, in New York City. Fifteen months later, on or about September 7, 2007, plaintiff commenced an action for divorce based on two of the statutory grounds. One was the constructive abandonment of plaintiff by defendant for a period of one year proceeding commencement of the action (DRL §170[2])[FN2]; the other was the cruel and inhuman treatment of plaintiff by defendant (DRL §170[1]). Plaintiff ultimately relied solely on the first cause of action, constructive abandonment, in seeking the divorce.
With respect to his cause of action for constructive abandonment, plaintiff alleged in his verified complaint “that commencing on or about August 1, 2006, and continuing for a period of more than one (1) year immediately prior to commencement of this action, the defendant refused to have sexual relations with the plaintiff despite plaintiff’s repeated requests to resume such relations.” The complaint states that there are no children of the marriage.
Defendant neither interposed an answer to the complaint nor in any other way sought to contest the divorce. Instead she provided plaintiff with an affidavit in which she admitted service of the summons and complaint “based upon the following grounds: constructive abandonment DRL §170(2).” She further stated that she was consenting to the matter being placed immediately on the uncontested divorce calendar. On the same day defendant signed the affidavit, June 2, 2008, the parties, both of whom were represented by counsel, executed a [*3]separation and property settlement agreement. The agreement states that “the parties agree that the Wife shall consent to an uncontested divorce judgment being entered against her under this Index Number based upon the grounds of constructive abandonment set forth in the first cause of action of the Verified Complaint.” As with defendant’s affidavit, no mention is made of children, either born or expected.
Following the execution of defendant’s affidavit and the parties’ agreement, plaintiff promptly placed the case on the uncontested matrimonial calendar for submission. This meant that neither party had to appear in court to give testimony because the application for the divorce judgment was to be decided on the papers alone. On July 29, 2008, a judge of this court signed the judgment dissolving the marriage between the parties by reason of the constructive abandonment of plaintiff by defendant. The judgment states that there are no known children of the marriage and none are expected.
On March 19, 2008, defendant gave birth to a baby boy, Ethan. This event not only predated the divorce judgment dissolving the parties’ marriage, but was prior to defendant having signed her affidavit and the parties having entered their separation and property settlement agreement. According to plaintiff, he was never aware that defendant was pregnant and he only learned about the child after the parties were already divorced. There is no father listed on Ethan’s birth certificate.
As far divorce litigation is concerned, the above represents an extreme example of a problem that divorce lawyers often face. If New York were to adopt some version of no-fault divorce, a great deal of litigation could be eliminated.
