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

New York Divorce and Family Law: Think Before You Post

Just came across a web site that states that New York State has no - No Fault Divorce. Meaning you must have a ground for a divorce. Which is current, but the web site then goes on to state that most people just put down "Constructive Abandonment or Abandonment" To get around the grounds requirement. To advertise this on a website, considering you must put the terms of the ground and attest to them under oath and on the record before a Judge seems incredibly un-ethical, even if it is some what true. Any opinions?

Constructive Abandonment is when one partner refuses to have sex with the other for one year, without any justification (such as a medical reason for not being able to perform) for refusing such and after being asked to have sexual relations.

Abandonment is when one partner leaves the home and is away for at least one year.

Other grounds for divorce are as follows:

(1) The cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant,

(2) The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.

(3) The commission of an act of adultery, provided that adultery for the purposes of articles ten, eleven, and eleven-A of this chapter, is hereby defined as the commission of an act of sexual intercourse, oral sexual conduct or anal sexual conduct, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of plaintiff and defendant. Oral sexual conduct and anal sexual conduct include, but are not limited to, sexual conduct as defined in subdivision two of section 130.00 and subdivision three of section 130.20 of the penal law.

(4) The husband and wife have lived apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment, and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree or judgment.

(5) The husband and wife have lived separate and apart pursuant to a written agreement of separation, subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded, for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such agreement. Such agreement shall be filed in the office of the clerk of the county wherein either party resides. In lieu of filing such agreement, either party to such agreement may file a memorandum of such agreement, which memorandum shall be similarly subscribed and acknowledged or proved as was the agreement of separation and shall contain the following information: (a) the names and addresses of each of the parties, (b) the date of marriage of the parties, (c) the date of the agreement of separation and (d) the date of this subscription and acknowledgment or proof of such agreement of separation.

Until Next Time,

Helen M. Dukhan, Esq., LL.M. @ www.DukhanLaw.com