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DivorceSpouse Who Had an Affair Denied a Divorce

December 17, 2007

A husband was justified in abandoning his wife after she admitted having an adulterous relationship. When the wife sought a divorce after her husband left her, her abandonment claim was dismissed.

The New York Legal Update
provides the details of the case of Kaplan v. Kaplan:

In that case, during a marital counseling session, the wife admitted to a long term extramarital affair. Thereafter, the husband moved out of the marital residence. More than one year later, the plaintiff-wife commenced the action for divorce, after 17 years of marriage, on the grounds of abandonment and cruel and inhuman treatment. The defendant-husband moved for summary judgment dismissing the action. The Supreme Court granted the husband’s motion, and the Second Department affirmed.

The Second Department noted that in order to be granted a divorce on the grounds of abandonment, a plaintiff must demonstrate that the defendant unjustifiably and without the plaintiff’s consent abandoned the plaintiff for a period of one or more years (see Domestic Relations Law § 170[2]). Here, The Court found that the husband was justified in leaving the marital residence because of his wife’s extramarital affair. Thus, there was no abandonment, and the wife was not entitled to the divorce on this ground.

With respect to cruel and inhuman treatment the Court noted that the marriage was one of long duration, and thus, a high degree of proof was required for termination on the ground of cruel and inhuman treatment. And here the Court found that the plaintiff-wife’s allegations of embarrassment and discomfort were insufficient to establish cruel and inhuman treatment

I am going to guess that money was the real issue in this case. What else could motivate the husband to oppose the divorce? Clearly, the marriage was dead – the husband moved from the marital home and the wife was having an affair. Since the Wife failed to prove grounds, the court did not have to address the issue of equitable distribution.

Without no-fault grounds for divorce, the wife is locked in a dead marriage; only the husband has grounds. As a result, the husband can extort economic concessions from the wife in order to secure a divorce.

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