Ever since New York passed the no-fault divorce law, judges and lawyers have debated whether a claim by one party that the marriage has been “irretrievably broken” bars the other party from contesting the divorce. The basis for the confusion lies within the law providing for no-fault divorce.
In 2010, the New York legislature finally joined the other states in providing for no-fault divorce, and no-fault was added to the list of grounds to become the seventh ground under Domestic Relations Law §170. Almost immediately, it became clear to matrimonial practitioners that there was an issue relative to Domestic Relations Law, §173, which states: “In an action for divorce there is a right to trial by jury of the issues of the grounds for granting the divorce.”
In Palermo v. Palermo (35 Misc. 3d1211A, Monroe Cty. Sup. Ct., 2011), the defendant moved to dismiss the complaint, claiming, inter alia, that plaintiff’s allegation that the marriage was irretrievably broken for a period of greater than six months was subject to trial. Judge Richard A. Dollinger issued a Supreme Court order denying the motion. The defendant appealed. On Nov. 8, 2012, the Fourth Department rendered its decision, unanimously affirming the trial court order “for reasons stated in the decision at Supreme Court.”
In his denial of the motion to dismiss, Judge Dollinger said, “This court must resolve the statutory contradiction [between DRL §170(7) and DRL §173]. In doing so, the primary consideration is to ascertain the history and object of the enactment, in light of the facts which were found by the legislature to prompt its enactment.” Due to the limitations of this column, what follows is a brief summary of the decision.
Fault-based divorces: The trial court noted that the high court does not favor fault-based trials in matrimonial actions as provisions for “a legal termination of dead marriages” serves the “larger public purpose” (Gleason v. Gleason [26 NY2d 28, 1971]), and “fault will usually be difficult to assign and introduction of the issue may involve the court’s in time-consuming procedural maneuvers relating to collateral issues” (Howard S. v. Lillian S. [14 NY3d 431, 2010]).
The court stated that the Gleason decision “recognizes that the state legislature could fashion divorce remedies based on both parties consent to end their marriage without further testimony or evidence as to their private intentions,” and pointed out, “[t]he question is whether the state legislature provided the same relief — divorce — based on the intentions of just one of the two partners to the marriage, without any inquiry into their intent or conduct by enacting §170(7).”
Legislative intent: The trial court turned to the statutory contradictions in the Domestic Relations Law and stated, “The primary consideration is to ascertain the history and object of the enactment, in light of the facts which were found by the legislature to prompt its enactment.” Looking to the legislative record, the court stated, “It is apparent that the legislature intended to provide estranged couples a simple and incontestable basis for ending their marriage, and avoid the squabbling over issues that flow from the other objective grounds in DRL §170,” and quoted the no-fault law sponsors and supporters.
Further, Judge Dollinger noted, “Equally compelling is what wasn’t said during the entire deliberations on [the no-fault legislation], no member of the legislature (or the governor) ever said anything indicating that a ‘sworn statement by one party that the marriage was irretrievably broken for a period in excess of six months’ is subject to the jury trial right under DRL §173.”
Decision: “Under DRL § 170(7), the grounds cannot be disputed. Either a party swears the marriage is irretrievably broken or they do not. The grounds are established by the oath; there is no legislative requirement of a judicial finding on the reliability or veracity of the oath.
While the right to trial set forth in DRL § 173 could be read to require a trial solely on the question of whether the party has properly sworn to the irretrievable breakdown of their marriage, it leads to a counterproductive, if not absurd, result: a jury trial on the question of whether the party has properly sworn to the irretrievable breakdown, a fact which is readily apparent to the court upon a review of the face of the pleadings. This court declines to interpret these two statutes in such a fashion when to do so creates the exact problem that DRL § 170(7) was designed to avoid.”
Judge Dollinger’s well-researched opinion is both interesting and instructive, and readers are encouraged to read it in the original.
Sara Stout Ashcraft is a partner in Ashcraft, Franklin, Young & Peters LLP. She concentrates her practice in the areas of matrimonial and family law.