Monday, September 20, 2010

No Fault Divorce?

A recent Nassau County divorce action, filed by a women against her husband of 30 years, was dismissed for lack of Grounds. The women claimed that the ground for divorce was constructive abandonment of her by her husband, the refusal to have sex with her for a year despite her efforts and requests to do so. This ground is commonly known as the default ground, meaning it is the ground couples often just agree to in order to get a divorce. However, in this case the husband challenged the grounds and the women was forced to take the stand in an open courtroom and answer personal and potentially embarrassing questions about her sex life.

In this case, when the women was asked when the last time was that she had sex with her husband, she replied that they had not had sex since their honeymoon in 1979. Her attorney had to remind her that they had two children together since then. She quickly changed her story and testified that she had not had sex with her husband for three years. When asked if she had tried to initiate sex or requested that he have sex with her, she replied “no”. At this point, the Judge asked her to leave the witness stand and dismissed the case three days later.

The Judge decided that the wife did not offer any credible evidence that the defendant’s refusal to have sex was unjustified, willful and continued despite repeated requests to resume sexual relations.

The above is an illustration of the problems fault grounds could cause when attempting to gain a divorce. Although the state’s no-fault rules take affect in less than a month and the wife will be able to re-file her divorce petition due to irreconcilable differences, the dismissal has caused her great hardship. The wife is unemployed and faces foreclosure on the house where she lives with her children. The decision also dismissed her pendente lite (interim) order requiring her husband to pay her $8,000 in maintenance and child support.

The new statute does not grandfather in ongoing action – any case filed before October 12, 2010 must still plead one of the six forms of fault described in Domestic Relations Law Section 170.1-170.6. However, supposedly as of October 12, 2010 it will be much easier for the wife to get a divorce from husband in the above case.

On the flip side of all of this, some say that the new law does not end the fault requirement per se, but rather merely adds a seventh group for divorce, that the relationship has broken down irretrievably for a period of at least six months. Some believe that fault will still be argued for a whole variety of reason from who has what financial rights to just plain making the other spouse crazy.

We’ll have to wait and see what happens.

Until next time,

Helen M. Dukhan, Esq., LL.M. @

Monday, September 13, 2010

Standard of Living Post Divorce

A recent study, done by the Institute for Social and Economic Research in Great Britain, showed that men improve their standard of living after a divorce while women sacrifice theirs. According to the study, this difference is particularly striking when the couple has children, because the children are more likely to live with their mother. Even to this day, according to statistics most mothers earn less than their husbands and end up paying more child care expenses after a divorce.

The study may have correct results but I’m not sure it took any other factors into account other than money. Personally, I have seen how hard it is for men to get a fair chance in divorce court and after all is said and done, even though they may be saving money, the study does not take into account the emotional scar left on many fathers after a divorce is complete. It is true that in most cases the children are more likely to live with their mother, and thereby no amount of money will replace a father’s lack of contact with his children. Often times fathers go from seeing their child every day to seeing them every other weekend.

Also, I believe that the study may have been alluding to the fact that the non-custodial parent has a higher standard of living post-divorce, regardless of whether that parent is the mother or the father. However, I’ve seen cases where the non-custodial parent has to leave the marital residence where the custodial parent and the children will be residing and have to go live on their friend’s couch or on the street for a while because they can’t afford to pay for two residences.

In conclusion, the study may in deed be right, but in my opinion missed the many complex factors that determine an individual’s standard of living other than money. I really believe that whether you are the custodial parent or non-custodial parent your standard of living post divorce has a lot to do with the person that you are and the representation you had during your divorce. If you are a strong and resilient individual with strong counsel, your rights will be protected, your relationship with your children will not be diminished, your financial assets will be guarded, and the problems in your marriage that lead to the divorce will disappear, leading to a higher standard of living post-divorce.

Until Next Time,

Helen M. Dukhan, Esq., LL.M. @