No-fault (irretrievable breakdown)

In its October 30, 2014 decision in Hoffer-Adou v. Adou, the Appellate Division, First Department, affirmed the granting of summary judgment awarding a no-fault divorce solely upon the plaintiff’s (here the wife) sworn statement. That award had been made below by Supreme Court, New York County Justice Deborah A. Kaplan.

In so holding the First Department joined the Fourth Department in holding that whether there has been an irretrievable breakdown is purely subjective. In a decision issued November 9, 2012 in Palermo v. Palermo, the Fourth Department (December 13, 2012 blog post) had affirmed a decision of Monroe County Supreme Court Justice Richard A. Dollinger (January 30, 2012 blog post) 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.

The First Department, here, held:

Contrary to the husband’s contention, the wife was entitled to a judgment of divorce under the no-fault provision of DRL § 170(7), since her statement under oath that the marriage was irretrievably broken for a period of six months was sufficient to establish her cause of action for divorce as a matter of law.

However, as noted in prior blog posts, the subject has not been without debate. Two decisions of the Nassau County Supreme Court, Townes v. Coker (relied upon by the First Department and discussed in the blog post of February, 20, 2012), and A.C. v. D.R. (discussed in the April 4, 2011 post), both held that New York’s new no-fault ground was purely subjective.


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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

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.


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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.


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Gay marriage rings.jpgLast week, the Appellate Division, Third Department, exercised its equitable muscle to filling in the gaps while the marriage and divorce laws of the different states catch up with each other.  On July 21, 2011, in Dickerson v. Thompson, the court granted a dissolution of a Vermont civil union.

Under Vermont law, the civil union entered by the gay couple was not a marriage. As a result, a New York divorce, “no-fault” or otherwise, was not the appropriate remedy. The appellate court noted that as “the plaintiff would be entitled to a dissolution of a civil union in Vermont,” but for her failure to be a current resident of that state. Giving the plaintiff her need relief, the court declared the broad equity powers of the New York Supreme Court were sufficient to declare the Vermont civil union dissolved. Thus, the plaintiff would now be free to marry, domestically partner, or re-unite with another.

While New York tore asunder one gay couple, more than 800 gay couples were able to marry on July 24, 2011, the first day of such unions under New York’s same-sex marriage legislation.  New York is still coming to grips with joining the rest of the country by making the dissolution of a marriage a matter of one spouse’s choice: a simple declaration that the marriage has broken down irretrievably. That law is just under 10 months old.


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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.


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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