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.

Justice Quinn’s decision continues to pit husband against wife, and child against parent. Requiring an objective ruling on the feelings of the parties enhances the damage caused by the divorce process itself.

This would appear to be contrary to the Legislature’s intent when it adopted Domestic Relations Law §170(7), allowing a divorce upon the grounds that “the relationship between the husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath.”  Relying on out-of-state decisions written 60 to 90 years ago to interpret New York’s 2010 amendment, Justice Quinn ruled that having one of the parties state under oath that the marriage has irretrievably broken down is just the beginning of the proof required for an objective determination.

There are others who share Justice Quinn’s opinion. Essex County Supreme Court Justice Robert J. Muller, in Strack v. Strack, held that “the determination of whether a breakdown of a marriage is irretrievable is a question to be determined by the finder of fact” (see blog). Duchess County Supreme Court Justice Charles D. Wood, in Schiffer v. Schiffer, agreed.

On the other hand, Nassau County Supreme Court Justice Anthony J. Falanga in A.C. v. D.R. (see blog), held that 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.”

Monroe County Supreme Court Justice Richard A. Dollinger, in his October, 2011 decision in Palermo v. Palermo, ruled that the sworn statement of one spouse, set out in the divorce complaint, that the marriage had broken down was sufficient to establish the no-fault grounds. The other spouse did not have a right to a trial to contest that assertion.

In his Sorrentino decision, Justice Quinn noted but did not comment upon the fact that the parties had entered into a “separation agreement” in 1996, as well as a prior divorce action “settlement agreement.” No comment was made on why Mrs. Sorrentino did not ask for a divorce on the grounds of living apart pursuant to either of those agreements (D.R.L. §170[6]). Living “separately,” although in the same residence is sufficient. Sepenoski v. Sepenoski, 188 A.D.2d 457, 591 N.Y.S.2d 63 (2nd Dept. 1992). The Sorrentinos appeared to have met that test.

42 years ago, the Court of Appeals in Gleason v Gleason, 26 N.Y.2d 28, 35, 308 N.Y.S. 2d 347, 351 (1970), discussed New York’s 1966 law establishing living apart pursuant to a separation decree as grounds for divorce. New York’s highest court declared:

[I]t is socially and morally undesirable to compel couples to a dead marriage to retain an illusory and deceptive status and that the best interests not only of the parties but of society itself will be furthered by enabling them ‘to extricate themselves from a perpetual state of marital limbo.’

It took the Legislature 40 years to catch up to this declared public policy and adopt true no-fault divorce. Apparently, it will take years more before our courts uniformly give it effect.