Approve No-Fault Divorce: A Judge Challenges Legislature

In a rare decision, a Nassau County judge challenged the state legislature to pass a bill adopting no-fault divorce.   Justice Robert Ross in Molinari v. Molinari stayed rendering judgment in the parties’ fault trial until the New York State legislature considers the issue of no fault divorce.

The decision highlights the fact that New York is the only state without a no-fault divorce.  The Judge then details the cost,  expense and prejudice endured by Mr. and Mrs Molinari, a typical estranged couple,  resulting from the absence of a no-fault divorce.

This case vividly illustrates the direct impact that New York's fault-based statute has on the manner and speed in which matrimonial matters proceed. Here, while litigating the issue of grounds, these parties were relegated to motion practice, amendment of pleadings, contemplation of withdrawal of the action and seeking a divorce in another jurisdiction, filing jury demand, conferences, and ultimately, trial of the matter. The proceedings relating to fault endured since January 2005.

Jeffrey Molinari, sought a divorce from his wife, Paula, based on one of the most commonly used grounds for divorce -- "constructive abandonment," or the refusal of one spouse to have sex with the other for at least a year. In the 49 other states, Ross urged, "Mr. Molinari would be entitled to be granted a judgment of divorce, on these limited facts alone."

Justice Ross aptly pointed out that the significant cost and delay, resulting from grounds  trials, preclude access tor courts and make the process of divorce  wholly more acrimonious by fostering and encouraging the embellishment of a spouse's wrongdoing as to grounds.

As Newsday reported, Justice Ross reserved the right to decide later on the case if the legislature failed to act on the bill. He said that other issues in their case -- including disputes over finances -- will move ahead. He acknowledged that his stay on the fault issue was aimed at sending a message to the legislature.

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