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My career on the bench has now reached 20 years with very little family law work. Turns out if you deny just one divorce, they stop sending them to you. But that is apparently not the rule in other states. Or at least one state. According to the Associated Press, “New York is the only state that won’t allow the speedy dissolution of a marriage without proof that one spouse is somehow at fault.” God bless those New Yorkers. They know that eliminating fault from divorce takes all the fun out of it. While the pop standard “New York, New York” celebrates the virtues of making “a brand-new start of it in old New York,” that does not apply to marriage. If you want a brand-new start to that, somebody has to take the blame. There are only six grounds for divorce in New York. Adultery or “cruel and inhuman” treatment are the first two, but they tend to be literal about the “cruel and inhuman” part. “You don’t bring me flowers anymore” apparently doesn’t cut it. It’s the other four grounds I find most interesting. They consist of (1) living apart for a year, (2) living apart for a year, (3) living apart for a year, or (4) going to prison for three years. Honest, that’s what the statute provides. I don’t know why. I’m 3,000 miles from New York, and there is no one I want to divorce there, so it would be wrong for me to spend a lot of time researching this, but four of the six grounds for divorce in New York are: abandonment for a year, living apart under a court-approved separation agreement for a year, living apart under contract for a year, or one of the parties being imprisoned for three years. I can only conclude from this that the New York Legislature decided, “If we only make �em go to prison for a year to get out of their marriage, we’ll have to hire thousands of additional police. Make it three years.” YOU GO — NO, YOU GO I mention all this so you can appreciate the dilemma of Simon and Chana Taub. Simon and Chana are in their late 50s. They’re married. They hate each other. They both want a divorce. But there has been no provable adultery, no cruel and inhuman treatment, (1) and neither is willing to live apart from the other because neither is willing to move out of the family residence. So they’ve been fighting for two years over who has to move and who has to take the blame for the divorce and who should pay the lawyers’ fees and what color the sky is and what sound cows make and what day comes before Thursday. I personally feel they should both be sent to prison for three years and then given their divorce, but that is not the solution the New York courts have come up with. The solution they came up with was to divide the Taubs’ three-story, million-dollar Brooklyn row house down the middle with a wall. That’s right. A wall. A trial court, unable to grant the parties — no, that’s not the right word — unable to grant the combatants a divorce, ordered that they be separated by building a wall through the house. Chana appealed that order. (2) But an appeals panel affirmed the lower court’s solution, (3) and last December the wall went up. (4) Chana and three of their children live on the top two floors. Simon and the fourth child live on the first floor. Drywall and large boards block the doors and halls between the two sections. (The Associated Press did not describe the living arrangements of the five social-services workers who must be assigned to this family.) I mean, picture this: Here is a family of six living with a wall separating the two halves of their home. Simon gloats about the fact that when the wall was built, 300 pairs of Chana’s shoes were trapped on his side. Chana says that’s a lie. Simon says maybe it was only 299, he was just approximating. So help me, if it weren’t for the four kids and the homeless shoes, this would be a pretty entertaining affair. Instead, it swings wildly between Henrik Ibsen and the Three Stooges. It’s like watching the Crips and the Bloods fight with Nerf hammers. LOVE, TAUB-STYLE You wanna know the best part? These people own another house. Two doors down. Either one of them could have moved into that house two years ago when this all started and they’d be divorced and watching Lifetime today. But they’d rather do battle. That has caused some to speculate that they might actually still be in love. One therapist was quoted as saying it was clear that if they were willing to go to these lengths, “there’s still far too much connection” for a divorce. Right. This is the kind of thinking that has worked out so well over the years in Bosnia and Kosovo. Tell the Serbs and the Croats and the Bosnians and the Turks there is “too much connection for a divorce.” Or tell it to a jury. That’s what the Taubs did. They had a jury trial. Six strangers were chosen by the state of New York to decide whether Mr. and Mrs. Taub could have a divorce. They said no. No? They said no?! Are you kidding me?!?! How could they possibly have said no? Did they not know about the wall? If we were willing to allow only two people on the planet to have a divorce, the Taubs would get my vote. Hell, if we were willing to allow only two people on the planet to have euthanasia, they’d get my vote. How could six people not previously identified as serial killers force these two wretches to go on being married? I don’t know. They apparently concluded that Chana’s lamentations about having to flush the toilet after her husband and her complaint that he “made her put on his shoes and socks” (5) did not rise to the level of cruel and inhuman treatment. Personally, I think the video cameras were the stronger argument. Simon has installed video cameras so he can peer into her side of the house. I might be willing to view that as “cruel and inhuman,” (6) but Chana’s argument in that regard was probably weakened by the fact that she’s done the same thing! (7) Maybe they should have just argued the case differently. Had Chana been my client, I would have told the jury, “The synonym for �inhuman’ in this context is not �cruel.’ The statute already covers that with the word �cruel.’ So it must be referring to something else when it refers to conduct that is �inhuman.’ In fact, when the statute refers to �inhuman’ conduct, it is referring to conduct that is nonhuman. And since no other humans in the history of the planet have ever conducted themselves like these two, this is clearly nonhuman conduct, even if it isn’t cruel.” (8) But that was — sadly — not argued. And, equally sadly, the Taubs remain united in holy deadlock. THE LAW IS STUMPED So let’s recap. We have two people in their late 50s with all the accumulated wisdom of a fence post. They have four long-suffering and doubtless psychologically endangered children. After 21 years of marriage, they have descended into a marital maelstrom so grotesque that they have divided their house — and their children — with a wall, on either side of which they have installed video cameras to monitor each other’s activities. Their complaints have dwindled to things like, “He doesn’t flush the toilet,” and “She owns too many shoes.” And a jury of six citizens of the great state of New York have decreed that these two people must stay together. Oyez, oyez, oyez! All persons having business before the Honorable, the Supreme Court of the State of New York, (9) are admonished to draw near and give their attention, for the court is now sitting. God save the state of New York and its amazing divorce laws. Can you imagine what this jury trial must have been like? It lasted 10 days. Ten days of what Simon’s attorney called “a colossal waste of judicial time.” All four of the Taub children testified on behalf of their mother. She said Simon attacked her with everything from a telephone to a treadmill. (10) He said he was a pussycat and she was just trying to squeeze cash from a turnip. (11) And at the end, the jury said no. Somehow Simon’s lawyer managed to find the only six strict constructionists in Brooklyn, and they voted to keep the couple “together” — or whatever the correct adverb is for this living arrangement. So they went home, still married, where — according to Chana — Simon punched her in the eye. Yep. Punched her in the eye. I will pause here so you can recover from your jaws-agape astonishment and actually close your mouth. So help me, less than 24 hours after being denied a divorce, they were back in court: He was claiming she had embarked upon a smear campaign by falsely claiming he hit her, and she was trying to get a judge to look at her shiner. They were both seeking restraining orders in different departments of the same courthouse. You probably find this case somewhat disturbing, but for me, it’s very reassuring. To all those people who didn’t think I was smart enough to handle a divorce case, I say, “See, turns out I was exactly smart enough.” This is precisely the kind of outcome I would have provided on a daily basis.
1. Remember, just being a world-class schmuck doesn’t qualify. 2. In fairness, I think, had I been her lawyer, I would have advised an appeal, too.3. They called it “novel.” I think the talent of New Yorkers for understatement is perhaps not fully appreciated.4. “And a peaceful and joyous holiday season to you and yours.”5. I’ve quoted this as it appears in the Daily News in New York. I’m afraid I cannot tell whether this means he forced her to help him dress or to wear his shoes and socks. Either way, it seems to me that these people are kinda hung up on footwear. Is there such a thing as a shoe/divorce/foot fetish?6. At least as long as “stupid and creepy” is not grounds for divorce.7. Sorry about all the italics, but this story seems to call for a lot of shouting.8. All the presiding judges who did not assign family law cases to me are reading this and nodding sagely.9. I suppose a good argument can be made that this mess is no more than you can expect from the only place in the world whose trial court is known as the “supreme” court. In New York, you can appeal from the rulings of the Supreme Court to the Court of Appeal. Come to think of it, maybe we should adopt that system here.10. The kitchen sink was apparently on her side of the wall.11. Even the metaphors are scrambled in this case.

William W. Bedsworth is an associate justice at the 4th District Court of Appeal in Santa Ana, Calif. This article previously appeared in The Recorder , an ALM publication in San Francisco.

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