NO FAULT OR YOUR FAULT?

As most people know, the legislature amended the Domestic Relations Law to provide for true “no fault divorce” in 2010. New York’s version of irreconcilable differences is that the marriage is “irretrievably broken” for a period of six months or more. The legislature apparently envisioned a true no fault ground, so that if one party stated under oath that the marriage is irretrievably broken for a period of six months or more, there were grounds for a divorce.

So what happened? After the new statute was enacted, parties wishing to withhold the divorce tried to litigate the issue of whether the marriage was irretrievably broken. In other words, they wanted the opportunity to contest before the court whether or not the marriage was irretrievably broken. Various trial courts have been split on the issue, with some holding that all that is necessary is for one party to claim under oath that the marriage is irretrievably broken, while other courts holding that a party has the right to contest the issue. A recent decision from the Supreme Court in Suffolk County held that the party contesting the divorce had the right to contest the issue of whether the marriage was irretrievably broken, and gave the parties a trial on that issue. After the trial, the court found that the marriage was indeed irretrievably broken. I have spoken to the trial judge and he has advised me that the case probably will be appealed to the Appellate Division so that we will have an appellate level decision on this topic.

It seems that the more things change, the more they stay the same. If the legislature intended to enact true no fault divorce, perhaps it should have said so. Until then, New York will continue to have divorce blackmail (See my prior blog dated March 28, 2009).