gavel 1 small.jpgIn a decision issued November 9, 2012 in Palermo v. Palermo, the Appellate Division, Fourth Department, affirmed the October 28, 2011 decision of Monroe County Supreme Court Justice Richard A. Dollinger for the reasons stated in Justice Dollinger’s opinion: a party’s sworn statement of irretrievable breakdown is incontestable. It is not subject to attack at trial.

For other decisions on this topic, see the blog published January 30, 2012.

Gavel 2.jpgElevating substance over form, Supreme Court Monroe County Acting Justice Richard A. Dollinger allowed a husband to amend his complaint in a 2009 divorce action to add a no-fault claim under D.R.L. §170(7), effective October 12, 2012.

Justice Dollinger in his April 16, 2012 decision in G.C. v. G.C. (pdf), noted New York’s public policy is to freely grant permission to amend complaints. The wife objected, noting that the Legislature expressly limited no-fault claims to actions commenced after its effective date.

D.R.L. §170(7) permits a divorce to be granted upon the sworn declaration of a party that the marriage has been “irretrievably broken down for a period of six months.” Justice Dollinger stated that the Legislature’s limitation of such a no-fault ground to actions commenced after the October 12, 2010 effective date of the statute, was satisfied by requiring that no such claim could be raised by amended complaint until six months after the effective date.

When the husband moves to amend his complaint to add a cause of action under Section 170(7), he does not violate the language of the statute or the intention of the Legislature, Instead, he seeks 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.

Continue Reading Judge Allows No-fault Divorce Claim to be Added to Pre-No-fault Case

bruno - Robert A.jpgIn his February 8, 2012 decision in Townes v. Coker, Nassau County Supreme Court Justice Robert A. Bruno joined his benchmate, retired Justice Anthony J. Falanga, and held that true no-fault divorce is now available in New York.

Justice Falanga, in his March 28, 2011 decision in A.C. v. D.R.,  had given full effect to New York’s new no-fault divorce law, when holding there is no defense to such a claim (see April 4, 2011 blog). The irretrievable breakdown grounds effective October, 2011 with the enactment of Domestic Relations Law §170(7) may be established by the subjective sworn declaration of one spouse, alone.

Justice Bruno, granting the wife a divorce upon her motion for summary judgment, agreed:

Therefore, in this court’s view, the Legislature did not intend nor is there a defense to DRL § 170(7). Suggestions that the party wishing to stay married has a constitutional right that is being infringed upon in violation of due process is unavailing. Staying married, against the wishes of the other adult who states under oath that the marriage is irretrievably broken, is not a vested right.

Here, the husband had previously filed his own divorce complaint upon the grounds of constructive abandonment (New York’s tamest fault gound before no-fault was enacted, established by proving, often without opposition, that one spouse had continually refused to engage in sexual relations for at least a year despite the other spouse being ready, willing and able to do so). Although the husband sought to withdraw that claim, Justice Bruno ruled that the claim nevertheless constituted a binding judicial admission from which the husband could not escape. That, too, demonstrated the merit to the wife’s claim:

[I]t is difficult for this Court to imagine a better example of a irretrievable breakdown of the marriage relationship where one spouse continually refuses to have sexual relations with the other spouse for a period of at least one year. Here, the Husband is bound by his own sworn admission contained in his Verified Complaint, thereby eliminating any triable issues of fact for this Court to determine. The fact the Husband … now wants to alter his sworn material representations … to create a defense … will not be tolerated by this Court.

Still further, under the unique circumstances presented to Justice Bruno, summary judgment granting the divorce was proper. Justice Falanga, in A.C. v. D.R., had held that denying summary judgment was necessary to give full import to the second sentence of D.R.L. §170(7), which provides that “no judgment of divorce shall be granted” until the custody and financial issues have been resolved.

In Townes, however, all of the financial rights and obligations of the parties had been determined by a 2007 post-nuptial agreement. The three children of the parties were emancipated. Thus, with it being conclusively established that post-nuptial agreement was valid, enforceable and dispositive as to equitable distribution, support and maintenance, there was no basis to withhold the immediate entry of summary judgment awarding the wife a divorce.

Update: In a decision issued November 9, 2012, the Appellate Division, Fourth Department, affirmed the October 28, 2011 decision of Monroe County Supreme Court Justice Richard A. Dollinger for the reasons stated in Justice Dollinger’s opinion: a party’s sworn statement of irretrievable breakdown is incontestable. It is not subject to attack at trial.


Original January 30, 2012 entry:

gavel 1 small.jpgGloria Sorrentino, 79 years old, was compelled to endure a three-day trial to obtain her “no-fault divorce”;  and that trial was only conducted after Mrs. Sorrentino had been subjected to an inquiry as to her competency and her freedom from duress from two of her children. Acting Suffolk Supreme Court Justice James F. Quinn, in his January 12, 2012 decision in Sorrentino v. Sorrentino, declared the continuing need of a family to go through the tragedy of a divorce grounds trial despite the October, 2010 adoption of New York’s no-fault statute.

To establish her irretrievable breakdown grounds, Mrs. Sorrentino testified to the years of the lack of a relationship with her husband of 56 years. That testimony was corroborated by the detailed testimony of two of the parties’ children.

Justice Quinn ruled that this detailed and corroborated testimony, alone, was not a sufficient basis upon which a court could grant a divorce on the grounds of irretrievable breakdown. Mr. Sorrentino was entitled to challenge his wife’s case and provide his defense.

Justice Quinn held that not only was Mrs. Sorrentino required to demonstrate why she believed her marriage had broken down irretrievably, but also that the court was entitled, or rather required to reach the same conclusion objectively on the basis of all of the evidence presented. Only the court and not the parties, no less only one of the parties, was entitled to decide when a marriage had irretrievably broken down.

Continue Reading No-fault Divorce Is Not Here, Yet: One Court Decides that Whether a Marriage Has Broken Down Irretrievably is an Objective Issue of Fact

Falanga.jpgIn his March 28, 2011 decision in A.C. v. D.R., Supreme Court Nassau County Justice Anthony J. Falanga gave full effect to New York’s new no-fault divorce law and temporary financial relief amendments.

In this first blog of two parts, the Court’s joinder of the wife’s no-fault action with the husband’s pre-no-fault action will be considered, together with the denial of the the wife’s motion for partial summary judgment on her no-fault grounds.  Although holding there is no defense to a no-fault claim, the Court declared that summary judgment and bifurcation of grounds issues are inapproriate.

Wednesday’s blog will consder the financial awards granted under the recent D.R.L. amendments.

The parties were married in 1992 and have 3 children, ages 13, 10 and 7. The husband, 52, is a physician; the wife, 46, a homemaker.

The husband commenced his divorce action on July 27, 2010 on the grounds of constructive abandonment and/or cruelty, although the wife was not served until October 22, 2010 (well within the 120 days of filing needed for timely service). However, four days before such timely service, the wife filed her own Summons with Notice, commencing an irretrievable-breakdown divorce action under D.R.L. §170(7) [effective October 13, 2010].

Earlier in this case, Justice Falanga resolved by January 18 Order, the husband’s motion to consolidate the two actions. The wife opposed on the grounds that if her action was subsumed within the earlier action, she would be prejudiced by her inability to avail herself of the new financial statutes. Represented by Robert Broderick, Esq., the wife argued instead for joinder for trial under C.P.L.R. §602(a), leaving the two actions intact, yet bringing the two actions together in one venue for pretrial and trial proceedings.

Justice Falanga noted that by joining the cases, as opposed to consolidating them, the husband would preserve his earlier commencement date for Equitable Distribution purposes, yet the wife would be entitled to relief under the later-enacted amendments to D.R.L. §§236B(5-a) and 237. In its January 18 Order, the Court granted a joint trial and joint discovery, after a bifurcated immediate grounds trial.

However, before that trial, the wife moved for partial summary judgment to establish her no-fault grounds as well as for interim financial relief.

In its March 28 Order, the Court re-analyzed the issues addressed in its January 18Order, denied partial summary judgment and canceled the grounds trial. In doing so, Justice Falanga gave true meaning to the no-fault nature of New York’s new divorce ground.

. . . [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. . . . In adopting no-fault divorce, the Legislature implicitly recognized that the parties to a marriage should be able to make personal and unavoidably subjective decisions about the continuation of their marriage partnership.

. . . .

Therefore, in this court’s view, the Legislature did not intend nor is there a defense to DRL § 170(7).

Denying partial summary judgment, Justice Falanga also gave full import to the second sentence of D.R.L. §170(7), which provides that “no judgment of divorce shall be granted” until the custody and financial issues have been resolved. Such, the Court held, precludes the granting of summary judgment.

Continue Reading Court Recognizes There Is No Defense to No-Fault Divorce, But Withholds Summary Judgment

Muller - Robert.jpgIn actions commenced on or after October 12, 2010, Domestic Relations Law §170(7) provides for granting a divorce where one party states under oath that “the relationship between husband and wife has broken down irretrievably for a period of at least six months . . . .”

It what may be the first decision to apply this no-fault divorce law, Justice Robert J. Muller of the Essex County Supreme Court, in Strack v. Strack has effectively determined to eliminate its no-fault nature.

Justice Muller decided a motion to dismiss a no-fault complaint seeking a divorce after 47 years of marriage. First, the Court ruled that C.P.L.R. 3016(c) requires that allegations of misconduct or complained-of acts be specified in a no-fault complaint. However, the “irretrievable breakdown” ground requires no misconduct; there need be no acts complained of. There is nothing to “specify” except one party’s wholly subjective belief that the marriage has broken down irretrievably.

Second, Justice Muller ruled that as the Legislature did not include irretrievable breakdown within the exceptions to the the five-year Statute of Limitations of D.R.L. §210(a), no divorce will be granted if the marriage broke down more than five years before the action was commenced. The Strack decision does not reveal whether the wife actually pleaded that the marriage first broke down more than five years before commencement. Indeed the language quoted from the complaint pleads only that the marriage had been irretrievable for “at least six months.” Accordingly, the Statute of Limitations defense raised by Mr. Strack [i.e., you can’t have a divorce because our marriage broke down more than five years ago], and recognized by the Court, would appear a creature of speculation. Fortunately for Mrs. Strack, the “record” revealed to Justice Muller that there were “instances of marital discord” occurring within the past five years, and thus, the Statute of Limitations defense was not available under “continuing course of conduct” rules. It remains that Justice Muller’s decision would hold that where spouses separated on consent more than five years ago, they may not be divorced in New York on no-fault grounds.

The purpose of the no-fault statute was to avoid the type of “record” required by Justice Muller. There is to be no proof of misconduct; indeed, there need not be any.

Third, Justice Muller ruled that the Legislature did not exempt irretrievable breakdown from the right to a jury in divorce grounds trials under D.R.L. §173, and did not “explicitly” abolish the right to a trial, itself, for a no-fault divorce. Thus, the Court held that Mrs. Strack’s verified statement that her marriage had broken down irretrievably for a period of at least six months was refutable:

The determination of whether a breakdown of a marriage is irretrievable is a question to be determined by the finder of fact.

However, the Legislature did “explicitly” state that a grounds trial was not necessary. Of all the divorce grounds contained in D.R.L. §170, only “irretrievable breakdown” is to be based only on the sworn statement of one party. Even Justice Muller recognized that the ground is purely subjective:

This Court does hold, however, that whether a marriage is so broken that it is irretrievable need not necessarily be so viewed by both parties. Accordingly, the fact finder may conclude that a marriage is broken down irretrievably even though one of the parties continues to believe that the breakdown is not irretrievable and/or that there is still some possibility of reconciliation.

Thus, what is it that the fact-finder, whether it be judge or jury, is to determine?

  • Whether the party really believes the marriage is irretrievably broken?
  • Whether the marriage is objectively irretrievably broken, even if one party believes it and the other party does not believe it?
  • Whether the breakdown occurred at least six months before the action was commenced?

None of that is required. If one party provides the Court with a sworn statement of irretrievable breakdown for more than six months, the divorce should be granted.

judge exasperated.jpgTwo December, 2010 appellate decisions reveal the colossal waste of judicial resources resulting from the failure to have no-fault apply to divorce actions “in the pipeline,” i.e., commenced on or before October 11, 2010.  Certainly, the time, money and angst of the battling spouses is just as important a concern.

On August 13, 2010, New York did add “no-fault” to its grounds for divorce (D.R.L. §170[7]).  Now, either spouse is able to end the marriage simply by stating under oath that the marriage has been broken down irretrievably for at least six months.

Unfortunately, the new law applies only to divorce actions commenced after October 11, 2010.

On December 2, 2010, in Dodd v. Colbert, the Third Department of New York’s Appellate Division affirmed a Ulster County Supreme Court’s ruling that fact issues in a divorce action commenced in 2008 precluded a summary finding that the husband was entitled to a divorce on cruelty grounds.  A grounds trial would be necessary to establish the nature of the wife’s relationship with another man since 2005 (the wife admitted that her “friend” had spent the night in her home and had gone on vacations with her).  Moreover, a trial was necessary to determine the physical and/or emotional impact on the husband of the wife’s conduct, to see whether it was “unsafe or improper” for the spouses to remain together.

On December 28, 2010, in Dayanoff v. Dayanoff, the Second Department affirmed a 2009 judgment of the Queens County Supreme Court, which denied a divorce to a husband because his testimony was inconsistent about his wife’s refusal to engage in sexual relations despite his repeated requests (the parties had been sleeping in separate bedrooms for three years [although, concededly, this fact, alone, may not indicate trouble in paradise).  Such a continual refusal by wife, if established, and if continual for a period of year would have constituted “constructive abandonment,” the tamest of New York’s pre-no-fault grounds for divorce.

One cannot fault the Supreme and Appellate Courts in these cases.  Their rulings appear clearly consistent with New York law.  However, and regardless of the religious pressure or politics which delayed New York from joining every other state in granting no-fault divorces, the days of requiring proof of fault are over.

Every practitioner (and spouse now involved in divorce litigation) knows of the delays incident to the tremendous caseload burdening matrimonial judges.  No useful purpose is served by continuing the grounds game.

The complaint in every pending action should be deemed to be amended to include the no-fault ground effective October 12, 2011.  If necessary, any dispute over the “date of commencement,” as it relates to the division of marital property, can be preserved.  Obviously, such can only be accomplished with legislative action.  Such action is needed quickly: time, money and emotions are wasting.