Brian D. Perskin & Associates

Latest Court Ruling – There is No Defense against New York’s No Fault Divorce Action

Confusion Over No Fault Divorce

Last year New York was one of the last states to introduce no fault as a ground for divorce. The passing of the statute means that either spouse can now procure a judgment for divorce if their relationship if:

"Effective relative to actions commenced on or after October 12, 2010, Domestic Relations Law § 170 (7) permits divorce where "[t]he relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath." This additional ground for divorce has given parties the option of securing a divorce without alleging fault."

The introduction of the no fault ground for divorce in New York was done so with the intention to end the need for grounds trials.

When the new law was enacted, there was a presumption that "the marriage had irretrievably broken down with no prospect of reconciliation," would create an irrefutable allegation that would essentially eliminate the need for a grounds trial, which are deemed to be time consuming and unnecessarily costly.

However, as with any new statute, there is always room for interpretation and courts find themselves faced with having to interpret the new law in order to ascertain legislative intent. A judge will use various techniques in order to determine intent, including legislative history, the meaning of particular words and other applicable provisions in the act.

As a result, there has recently been some confusion as to what happens when the no fault ground is contested by one of the parties.

One particular case this year exemplifies this confusion. In the New York Supreme Court, Essex County, in the trial of Strack v. Strack, Justice Robert J. Muller ordered a trial to determine whether in fact the marriage had irretrievably broken down, after one part challenged the allegation.

In Strack v. Strack, Justice Muller ruled that because the new law does not explicitly abolish a right to trial in a divorce action, a party is entitled to a trial to determine:

"Whether a breakdown of a marriage is irretrievable..."

Justice Muller noted that while the new law had the intention of lessening litigation, it was no a "not a panacea for those hoping to avoid trial."

When examining the Domestic Relations Law § 173, there is a provision that "[i]n an action for divorce there is a right to trial by jury of the issues of the grounds for granting the divorce".

There was no exclusion in Domestic Relations Law § 170 (7) to suggest that the grounds contained therein are exempt from a right to trial. Had it intended to abolish the right to trial for the "no fault", it would have explicitly done so.

Thus it is quite reasonable for Justice Muller to interpret the law in the way that he did. The first paragraph of DRL §170 statute reads:

"An action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on any of the following GROUNDS (emphasis added)"; and the new provision, subsection (7), is listed as one the "grounds".

Whether this was just poor wording created ina hurry to enact the law, the meaning does clearly state that the ground of "No Fault" is just another ground for divorce, and the court was justified in applying DRL § 173 which provides that:

"[i]n an action for divorce there is a right to trial by jury of the issues of the grounds for granting the divorce".

However the latest court ruling in the decision of A.C. v. D.R., 10-202115 was that there is no defense to New York's No Fault Divorce

A Husband's claim that New York's "no-fault" divorce statute violates his constitutional rights because he wanted to remain married was rejected in the March 28, 2011 decision of A.C. v. D.R.

Justice Anthony J. Falanga rejected this claim and held that The Court further held that a party's "self-serving declaration about his or her state of mind is all that is required for the dissolution of a marriage on grounds that it is irretrievably broken."

The decision in this case will certainly bring much relief to other parties intending to use the no fault ground for divorce in their action.