DivorceNew York’s First Divorce Trial: The Marriage was Irretrievably Broken

January 31, 2012

16962-iStock_000017070446XSmallAfter the first no fault divorce trial in New York, a Long Island court found that the parties’ marriage had irretrievably broken down and the wife was granted a divorce. In July, the same Supreme Court judge ruled that the mere allegation in the complaint that the parties’ marriage had irretrievably broken down did not resolve the “grounds” issue.

New York’s no fault divorce law provides that a party may be granted a judgment of divorce if “the relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath.”

As I previously reported, two other New York courts ruled that that a spouse is not entitled to a trial to challenge the other’s allegation that the marriage has irretrievably broken down. The ground is established by simply alleging in a signed pleading that the marriage has irretrievably broken down.

In Sorrentino v. Sorrentino, the Court noted that the husband alleged that the Wife was “was extremely frail, was not of her “right mind” and was under the unnatural sway of at least two of her four children.” While the judge opined that he had to consider these affirmative defenses, he concluded that they were without merit and the Wife was entitled to a divorce.

While I think many judges will simply take the position that New York’s no fault divorce law does not require a trial to prove that the marriage has irretrievably broken down (the mere allegation will conclusively prove the allegation), there will be other judges who believe that there may be defenses to the claim and, as a result, will require a trial. Until the Appellate Division rules to the contrary, there will not be consistency; one judge may allow party to defend against a no fault divorce and another may not. This case may not be the last no fault divorce trial.

 

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