January 09, 2012

New York's No Fault Divorce Law Does Not Reduce The Court To A Rubber Stamp: Opposing A Divorce In New York

NEW YORK'S NO FAULT DIVORCE LAW DOES NOT REDUCE THE COURT TO A RUBBER STAMP: OPPOSING A DIVORCE IN NEW YORK

On October 12, 2010, with much media fanfare, the legislature added a "no-fault" ground to New York State's divorce statute, Domestic Relations Law § 170. That section allows parties to seek a judgment of divorce when "the relationship between the husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath" (Domestic Relations Law § 170[7] ). The statute also provides that "no judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts" fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into this judgment of divorce" (id.). 

 Many litigants wrongly assume that with the passage of the no-fault law, divorces are "automatically" granted in New York.  That is simply not true.  In his or her answer, a defendant may deny that there is has been an irretrievable breakdown.   A Plaintiff is then required to prove that there has been an irretrievable breakdown for a period of at least six months.  Schiffer v. Schiffer, 33 Misc.3d 795 (Dutchess County Supr. Court 2011).  The question of whether there has, in fact, been an irretrievable breakdown is an issue of fact that must be proven by the Plaintiff. 

 In the Schiffer decision, the Court observed:

 Since the sole means of procuring a divorce in New York is by judicial process (N.Y. Const., art. I, § 9), precluding a party from contesting a ground for divorce "must be regarded as the equivalent of denying [him or her] an opportunity to be heard ... and in the absence of a sufficient countervailing justification for the State's action, a denial of due process" (Boddie v. Connecticut, 401 U.S. 371, 380-381, 91 S.Ct. 780, 28 L.Ed.2d 113 [1971] ). A contrary finding would merely reduce the court to a rubber stamp whenever presented with an action for divorce under Domestic Relations Law § 170(7).

At bottom, it is entirely possible to defend against and stop a divorce in New York, even under the new no-fault divorce law.  Beyond challenging the ground (i.e., arguing that there do not exist irreconcilable differences), a defendant can demand a full adjudication of financial issues - a time consuming process that can involve years of litigation.

Alwar Says:
January 17,2012 08:03 am

Informative Article. Thank you.