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Okan Ozkan admitted that he went to Turkey with a woman who was not his wife. He also confessed to once having had an affair. His wife, Gail Ozkan, testified that she had had a telephone conversation with a woman who she believes is her husband’s paramour. She sued for divorce. The case went all the way through trial to a ruling. She lost. In his Aug. 2 post-trial decision in Ozkan v. Ozkan, 23751-02, Suffolk County Supreme Court Justice William J. Kent wrote, “It is not easy to establish a ground of adultery due to the rigid evidentiary principles required to prove same.” The judge first noted that based upon the limited evidence before him, Ms. Ozkan failed to “meet her heavy burden in establishing that the defendant engaged in adultery sufficient to justify the granting of a judgment of divorce on the ground of adultery.” He then found that even if Ms. Ozkan proved her husband committed adultery, because she continued to have sex with her husband after learning of his alleged infidelity, she had forgiven him, proving an affirmative defense. Experienced matrimonial attorneys are calling the ruling rare but not unheard of. One lawyer said the result underscores the need to add a true no-fault ground to New York State’s divorce laws. The New York State Bar Association last week launched a drive to do just that. A 16-YEAR MARRIAGE The non-jury trial spanned parts of four days. Central to the case was proof that Mr. Ozkan admitted to a past infidelity and that he went on a trip to Turkey with another woman. When asked, however, if he was presently having an affair, he claimed that under the Fifth Amendment, he was not required to answer, said Ms. Ozkan’s lawyer, Gloria May Rosenblum of East Islip, N.Y. During the trial Ms. Ozkan also testified to cruel and inhuman treatment, citing the adultery as a component of that behavior. But those allegations were insufficient to dissolve the parties’ 16-year marriage. “[T]he plaintiff failed to establish that she suffered any physical or mental debilitation as a result of the alleged affair,” wrote Kent. “Moreover, she voluntarily resumed cohabitation and marital relations with the defendant, after becoming aware of said affair.” According to Kent’s ruling, while a single adulterous act is sufficient to sustain a cause of action, “adultery cannot be established solely by the admission or confession of the defendant. Rather there must be additional corroborating evidence which supports the finding of adultery.” Mr. Ozkan’s attorney, Deborah Poulos of Hauppauge, N.Y.’s Lefkowitz & Poulos, said that such victories are rare. She attributed the outcome of this case to the plaintiff’s failure to call any corroborating witnesses. “We still have fault grounds in New York State. You still have to plead and prove your grounds unless the parties agree otherwise,” she said. Justice Kent rejected Rosenblum’s request that he draw an inference against Mr. Ozkan from his assertion of the Fifth Amendment privilege, she said. Neither the assertion, nor the denial of Rosenblum’s motion were mentioned in Justice Kent’s decision. Nevertheless, that and other evidentiary rulings will be the basis for an appeal, she said. LACK OF NO-FAULT PROVISION While he played no role in the case, veteran matrimonial lawyer Stephen Gassman, a partner at Garden City, N.Y.’s Gassman & Keidel said that the outcome “happens more than you would think.” Gassman also said the result is at least partly attributable to the lack of a no-fault divorce provision under New York’s Domestic Relations Law, a provision common to every other state. Calling New York’s divorce laws “archaic,” he added that the present statute, Domestic Relations Law �170, “forces people to prove their fault grounds and air their dirty laundry instead of recognizing that the marriage is dead and we ought to bury it.” The New York State Bar Association has drafted a revision to the bill that would add a cause of action for marriages that have irretrievably broken down, he noted. “It’s high time that we came into step with the other states and stopped being unique in this regard,” Gassman said. Asked about the possible amendment of DRL �170, Rosenblum said, “This would be a classic example of the need for it.” Similarly unfazed by the defense ruling, Garden City matrimonial lawyer Stephen W. Schlissel said of the forgiveness finding, “that is the law if the facts are proven.” A partner in Garden City’s Schlissel Ostrow Karabatos Poepplein Cender & Fisher, he added that deployment of the forgiveness defense is “uncommon in that it is rarely utilized, but, if it is proven, the judge is required to rule as he did.” Because the law is as Kent applied it, Schlissel said that most matrimonial attorneys will advise their clients to suspend their marital relations until their case is resolved. Asked why one would assert the forgiveness defense when such a victory would likely be pyrrhic, Schlissel answered, “it is sometimes a good thing to reconcile and sometimes people have that thought in mind … and intimacy is an important part of marriage.” Calling the case a “win” for her client, Poulos declined to speculate as to where the Ozkans stood with respect to their marriage. They have two children and are still living in the same house. The parties cannot launch a new divorce action during the pendency of the present case. They must wait for a new cause of action to arise before starting over.

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