On Oct. 12, 2010, some 40 years after the no-fault divorce train left the station in California, New York jumped on board by adopting an irretrievable breakdown ground for divorce. Already controversy has emerged with respect to a most fundamental issue: Can a divorce action based on irretrievable breakdown be opposed? Some have suggested that the new ground brooks no opposition, that the defendant will have no opportunity to question whether the statutory standard has been met.1 In Strack v. Strack,2 Justice Robert J. Muller, of the Supreme Court in Essex County, rejected that view and held that due process requires the defendant be afforded the right to contest the no-fault ground at trial.
The Facts
In Strack, the wife sued for divorce, relying upon the irretrievable breakdown ground: “The 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.”3
