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. @ www.dukhanlaw.com

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