In 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.
Finally, the Court concluded that holding a grounds trial only on the husband’s claim would not serve judicial economies and would inequitably allow fault trials on one party’s claim to advance in time against the other party’s no-fault claim.
Bifurcated trials have been generally disfavored in matrimonial actions. They raise possibility of economic coercion, may necessitate two protracted trials being held instead of one, and may delay resolving the financial issues. See, e.g., Costin v. Costin, 225 A.D.2d 575, 638 N.Y.S.2d 786 (2nd Dept. 1996); Campbell v. Campell, 171 A.D.2d 720, 567 N.Y.S.2d 175 (2nd Dept. 1991)
Of course, there is, at least, one advantage to bifurcation, or the granting of an interlocutory judgment of divorce. Once the dissolution of the marital relationship is adjudicated, the death of a party will not abate the action. The ability of the court to issue a post-death divorce decree nunc pro tunc will not be impaired as such action is merely ministerial in nature. (See, Cornell v. Cornell, 7 N.Y.2d 164, 169, 196 N.Y.S.2d 98, 164 N.E.2d 395 ; McKibbin v. Jenkin, 41 A.D.3d 166, 839 N.Y.S.2d 166 (2nd Dept. 2007).
There is a dichotomy. It is the filing of the Summons which marks the end of the economic partnership. If there is no defense to the subjective sworn declaration by one spouse that the marriage is irretrievably broken, should there be a period of marital purgatory between filing and judgment, when the marriage is neither alive nor dead?
Should death-bed divorce actions be supported as was done by Westchedter County Supreme Court Justice William J. Giacomo in Hannigan v. Hannigan, 9 Misc.3d 1129(A), 862 N.Y.S.2d 808, N.Y. Slip Op. 51836(U) (2005)? In that case the Court severed the grounds issue at the request of the wife who represented that she was suffering from a terminal illness and wished to be divorced before her death. The Court granted this relief, but only on stated conditions that preserved the financial rights of her husband.
Inviting an onslaught of nursing home divorces is not a pleasant prospect. However, if there is no defense to a no-fault divorce, and the economic partnership ends on filing, do the same policies which in the past led to abatement of divorce actions on death truly continue to serve the public?