Two December, 2010 appellate decisions reveal the colossal waste of judicial resources resulting from the failure to have no-fault apply to divorce actions “in the pipeline,” i.e., commenced on or before October 11, 2010. Certainly, the time, money and angst of the battling spouses is just as important a concern.
On August 13, 2010, New York did add “no-fault” to its grounds for divorce (D.R.L. §170[7]). Now, either spouse is able to end the marriage simply by stating under oath that the marriage has been broken down irretrievably for at least six months.
Unfortunately, the new law applies only to divorce actions commenced after October 11, 2010.
On December 2, 2010, in Dodd v. Colbert, the Third Department of New York’s Appellate Division affirmed a Ulster County Supreme Court’s ruling that fact issues in a divorce action commenced in 2008 precluded a summary finding that the husband was entitled to a divorce on cruelty grounds. A grounds trial would be necessary to establish the nature of the wife’s relationship with another man since 2005 (the wife admitted that her “friend” had spent the night in her home and had gone on vacations with her). Moreover, a trial was necessary to determine the physical and/or emotional impact on the husband of the wife’s conduct, to see whether it was “unsafe or improper” for the spouses to remain together.
On December 28, 2010, in Dayanoff v. Dayanoff, the Second Department affirmed a 2009 judgment of the Queens County Supreme Court, which denied a divorce to a husband because his testimony was inconsistent about his wife’s refusal to engage in sexual relations despite his repeated requests (the parties had been sleeping in separate bedrooms for three years [although, concededly, this fact, alone, may not indicate trouble in paradise). Such a continual refusal by wife, if established, and if continual for a period of year would have constituted “constructive abandonment,” the tamest of New York’s pre-no-fault grounds for divorce.
One cannot fault the Supreme and Appellate Courts in these cases. Their rulings appear clearly consistent with New York law. However, and regardless of the religious pressure or politics which delayed New York from joining every other state in granting no-fault divorces, the days of requiring proof of fault are over.
Every practitioner (and spouse now involved in divorce litigation) knows of the delays incident to the tremendous caseload burdening matrimonial judges. No useful purpose is served by continuing the grounds game.
The complaint in every pending action should be deemed to be amended to include the no-fault ground effective October 12, 2011. If necessary, any dispute over the “date of commencement,” as it relates to the division of marital property, can be preserved. Obviously, such can only be accomplished with legislative action. Such action is needed quickly: time, money and emotions are wasting.