After the passage of the no-fault divorce law—which authorizes grounds based upon irretrievable breakdown of the marriage for a period of six months in actions commenced on or after Oct. 12, 2010—it was thought that we had one less issue to fight over amidst all of the other usual points of available contention. Unfortunately, in some quarters, whether or not “no- fault” means “no trial” is still being debated.
Despite the clearly expressed legislative intent, there are several decisions discussed infra, which have found that legislative omission in the statutory enactment raises due process issues and creates the need for a trial when one party objects to the proponent’s sworn assertion that the marriage was irretrievably broken or that the breakdown has not lasted for the requisite six months.1 The claim that a right to a jury trial is implicated has also been raised. This article avers that adherence to those positions serves only to perpetuate the very conflict that the statute sought to avoid and that those positions are refutable. Fortunately, some very well-reasoned lower court decisions have also been issued which will hopefully guide others along the right path.
DRL §170(7) permits an action for divorce to be granted where:
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. No judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts’ fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce. (Emphasis added)
When no-fault was finally passed and New York became the very last state to join its 49 previously enlightened sister states, the Legislature declared, “This legislation enables parties to legally end a marriage which is, in reality, already over and cannot be salvaged. Its intent is to lessen the disputes that often arise between the parties and to mitigate the potential harm to them and their children caused by the current process.”2
The Contestability Assertion
There are, as of the writing of this article, four reported decisions requiring a trial of no-fault grounds. The contestability of no-fault divorce was been found in Strack v. Strack,3 Schiffer v Schiffer,4 Stroffolino v. Stroffolino,5 and Sorrentino v. Sorrentino.6
The Strack court, in denying a motion to dismiss the no-fault complaint on a number of grounds, found due process implications in the statute:
Specifically, Domestic Relations Law §173 provides that “[i]n an action for divorce there is a right to trial by jury of the issues of the grounds for granting the divorce” and, here, the Legislature failed to include anything in Domestic Relations Law §170(7) to suggest that the grounds contained therein are exempt from this right to trial. Had it intended to abolish the right to trial for the grounds contained within Domestic Relations Law §170 (7), it would have explicitly done so.…
Insofar as the phrase “broken down irretrievably” is nowhere defined in the statute, the determination of whether a breakdown of a marriage is irretrievable is a question to be determined by the finder of fact.
The court in Schiffer denied summary judgment in favor of the divorce following the holding in Strack:
An assertion by a party that the marital relationship has been irretrievably broken for six months is subject to the same scrutiny and burden of proof as assertions made under other sections of the statute. Domestic Relations Law §170(7) is clear, and it is consistent with the overall framework of the entire statute.… There is no reason to treat it any differently than the rest of Domestic Relations Law §170 for purposes of this summary judgment motion. The Legislature has granted matrimonial litigants the option of asserting the no-fault ground—it has not removed a defendant’s basic right to contest grounds, which exists for all other similarly worded sections.
In Stroffolino, Justice Eric I. Prus, of Supreme Court, Kings County, required a grounds trial in an action where the “no fault” ground was alleged. In Sorrentino, the first trial of a contested no-fault divorce in New York ended after hearing when the court ended a 56-year marriage that he determined was “irretrievably broken.” Justice James F. Quinn in Suffolk County held that a hearing was required and then after testimony found “the parties’ relationship has so deteriorated irretrievably for a period in excess of six months…and that all other economic issues having been previously resolved by way of agreement and on file with the court, the plaintiff is entitled to a judgment of absolute divorce.”7
No-Fault Means No Trial
Standing squarely on the side of “no-fault” means “no trial” are four published decisions—three from Nassau County and one from Monroe County. In the initial Nassau County case, Justice Anthony J. Falanga, ruled in A.C. v. D.R.8 that the decision to grant a no-fault divorce must be based alone on one party’s declaration that a marriage was broken. Citing to the Court of Appeals decision in Gleason v. Gleason,9 the court found that the failure of the Legislature to provide defenses to the no-fault ground does not allow the court to graft on to a plainly written statute standards of proof and requirements not contained in the statute.
…a plaintiff’s self-serving declaration about his or her state of mind is all that is required for the dissolution of a marriage on the ground that it is irretrievably broken. As stated in our statute, a no-fault divorce may be granted “provided that one party has so stated under oath” that the marriage is irretrievably broken. In adopting no-fault divorce, the Legislature implicitly recognized that the parties to a marriage should be able to make personal and unavoidably subjective decisions about the continuation of their marriage partnership. The conclusion, that it is sufficient that a party subjectively decide that their marriage is over, finds support in the reasoning of other courts. [Citations omitted.]
Therefore, in this court’s view, the Legislature did not intend nor is there a defense to Domestic Relations Law §170(7). Suggestions that the party wishing to stay married has a constitutional right that is being infringed upon in violation of due process is unavailing. Staying married, against the wishes of the other adult who states under oath that the marriage is irretrievably broken, is not a vested right.
In Vahey v. Vahey,10 Justice Daniel Palmieri ruled that the plaintiff-husband should be granted a divorce on the grounds of the husband’s own declaration that his marriage was irretrievably broken—indicating agreement with the court’s Nassau County colleague and specifically disagreeing with Strack and Schiffer. Palmieri elaborated,
The Court notes that as the Legislature in adopting section 170(7) has not required the pleading of objective facts of the breakdown, but has required instead no more than a sworn statement of a breakdown by the plaintiff, it does not appear that a plaintiff can be put to his or her proof on the subject. Under this new ground the plaintiff’s sworn belief about the state of the relationship must be deemed sufficient, for if not the party seeking the divorce on this basis could be put through the same type of litigation regarding the martial relationship that this legislative addition was clearly designed to avoid.
In Townes v. Coker,11 Justice Robert Bruno also held that once a party has stated under oath that the marriage has been irretrievably broken for a period of at least six months, the cause of action for divorce has been established as a matter of law.
These decisions are also in accord with Justice Richard Dollinger’s Monroe County decision in Palermo v. Palermo,12 finding one spouse’s objection to the other spouse’s declaration that a marriage was irretrievably broken could not block a no-fault divorce. The 29-page decision in Palermo, which follows A.C. v. D.R., while rejecting Strack and Schiffer, serves as an academic blueprint of analysis and reasoning. It elaborates at length upon history, legislative intent, and case precedent while addressing the flaws in the arguments used in the conflicting “trial ready” decisions. A review of Palermo is essential in understanding the persuasiveness of the uncontestability argument.
It is also notable that in another version of the no-fault bill, the following language, which ultimately does not appear in the existing law, specifically allowed for the no-fault allegation to be contested:
(B) if both of the parties by petition or otherwise state under oath or affirmation irreconcilable differences within the marriage or if one of the parties so states and the other does not deny such statement, the court shall make a finding as to whether or not the marriage is irremediably broken. Irreconcilable differences are those grounds which are determined by the court which have caused the irremediable breakdown of the marriage and further attempts at reconciliation are impractical or futile and not in the best interest of the parties or family. (1) If one of the parties has denied under oath or affirmation that the marriage is irremediably broken, the court shall consider all relevant factors, including the circumstances that gave rise to the filing of the petition and the prospect of reconciliation, and shall: (i) make a finding whether the marriage is irremediably broken; or (ii) continue the matter for further hearing and may suggest to the parties that they seek counseling. The court shall then make a finding whether the marriage is irremediably broken.13 (Emphasis added)
This language of contest, by its lack of inclusion, has clearly been rejected in the bill which was ultimately signed into law and which only requires one party to state under oath that the marriage is irretrievably broken. That the other party may make his or her own subjective claim that it is not so broken and may even wish to provide objective evidence of such a position becomes irrelevant, immaterial and accordingly inadmissible. The further assertion that a jury trial is mandated by the statute’s failure to specifically carve out an exception to the jury trial right under DRL §173—and thus, a commensurate right to contest—is misplaced. DRL §173 provides that “In an action for divorce there is a right to trial by jury of the issues of the grounds for granting the divorce.” (Emphasis added)
The no-fault law, however, specifically eliminates the issue of the grounds by requiring only the sworn statement of one party. Assuming that the jurisdictional element is met—i.e., that the parties were married for the statute’s requisite six months (which is independent of the issue of the irretrievable breakdown)—there is no issue available to be contested before a jury or otherwise regarding the ground itself.
An End to the Debate
The very purpose of the no-fault law, which was finally enacted in New York, was to end contested grounds trials. The other “fault grounds” for divorce still exist and remain available to fight over should the litigants wish to go in that direction—and there may be reasons to do so depending upon the issues in the case. Trying to find ways to circumvent the intent of the no-fault law, however, while not beyond the purview of creative lawyering, is at this point litigation for its own sake. The apparent wish of the Legislature is to presently stand aside and leave it to the courts to sort out.14 It is time for the debate to end. There are enough issues to fight over—no-fault divorce should not be one of them.
Lee Rosenberg is a partner at Saltzman Chetkof & Rosenberg in Garden City. He is a Fellow of the American Academy of Matrimonial Lawyers and chair of the Nassau County Bar Association’s Matrimonial Law Committee. He can be reached at Lrosenberg@scrllp.com.
1. There is also some earlier academic commentary on this issue, i.e., Timothy Tippins, “No-Fault Divorce and Due-Process,” NYLJ (March 3, 2011); Elliott Scheinberg, “No-Fault Divorce, Defenses, Pleadings, Independent Actions,” NYLJ (Nov. 30, 2010); Elliot Scheinberg. Sondra Miller, Andrew Schepard, “Jurisdiction, Due Process and No-Fault Divorce“, NYLJ (March 14, 2011); Sondra Miller, “No-Fault—Clear and Simple” NYLJ (Dec. 3, 2010).
2. Sponsors’ Memorandum to S.3890A/A.9753A.
3. 31 Misc.3d 258 (Sup. Court Essex Co. 2011, Muller, J.).
4. 33 Misc3d 795 (Sup. Court Dutchess Co, 2011, Wood, J.).
5. Decision by Eric I. Prus of Supreme Court, Kings County, referenced by Daniel Wise, “Court Orders Trial to Consider State of Marriage Under No-Fault,” NYLJ, Feb. 4, 2011. Appeal withdrawn at 2011 N.Y. Slip Op 74144.
6. NYLJ, Jan. 26, 2012 (Sup Court Suffolk Co. 2012, Quinn, J.).
7. See, Joel Stashenko, “Woman Wins Divorce After Trial in No-Fault Dispute,” NYLJ (Jan. 26, 2012).
8. 32 Misc.3d 293 (Sup. Court Nassau Co. 2011, Falanga, J.).
9. The divorce of actor/comedian Jackie Gleason, 26 NY2d 28 (1970).
10. 2012 N.Y. Slip Op 22065 (Sup Court Nassau Co. 2012, Palmieri, J.).
11. 2012 N.Y. Slip Op 22031 (Sup Court Nassau Co. 2012, Bruno, J).
12. NYLJ, Oct. 27, 2011 (Sup. Court Monroe Co 2011, Dollinger, J.).
13. Proposed Bill A.05543 (2009-2010 session).
14. A March 10, 2012, Newsday article, “L.I. Divorce Filings Up Under No-Fault Law” by Carol Polsky, contains the following: “For now, said no-fault’s State Senate sponsor Ruth Hassell-Thompson (D-Westchester-Bronx), ‘As a general rule, No-Fault Divorce in New York State is helping scores of New Yorkers resolve their matrimonial problems in a much more civil and healthier way.’ Any effort to amend the law, she said, should wait to ‘allow the appellate courts to do their jobs and resolve any questions surrounding the proper application of the law.’”