In the first appellate decision to address the issue, a panel in Rochester has held that the no-fault divorce statute does not provide one spouse with a trial right to contest the other’s assertion that the marriage has been irretrievably broken for at least six months. The Appellate Division, Fourth Department, recently affirmed and adopted the reasoning of Acting Supreme Court Justice Richard Dollinger (See Profile) in Monroe County in Palermo v. Palermo (2010/15824). In Palermo, Dollinger found that a spouse cannot block a no-fault divorce by contesting his or her partner’s declaration that the marriage is irreparable (NYLJ, Feb. 9).
“New York’s legislature has enacted in DRL §170(7) a true ‘no-fault’ divorce law which does not require proof of any fault, and which does not require or permit the government, through its courts, to put people seeking a divorce on trial regarding their marriage,” Dollinger wrote.
His opinion was consistent with that of Supreme Court Justice Anthony Falanga (See Profile) in Nassau County in A.C. v. D.R., 2011 NY Slip Op 21113 (2011), but contrary to a ruling by Supreme Court Justice Robert Muller (See Profile) in Essex County.
The Fourth is the first Appellate Division department to address the issue. Presiding Justice Henry Scudder (See Profile) and Justices Eugene Fahey (See Profile), Edward Carni (See Profile), Joseph Valentino (See Profile) and Salvatore Martoche (See Profile) decided Palermo v. Palermo, 12-00689.