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.