In 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.