Fault Divorce: A New York Disgrace

As of this writing, New York remains the only state in the Union to require fault to obtain a divorce. In doing so, couples going through divorce litigation must expend needless additional dollars and endure needless emotional trauma, in order to satisfy the antiquated divorce statute that requires adultery, cruelty, or abandonment, to end their relationship and start life afresh. The shame of such result, apart from the emotional and pecuniary impact, is that litigants feel compelled to commit perjury to obtain a divorce on " constructive abandonment" even if they agree not to contest grounds.

Impact of Fault Requirement on Families

Although the courts have attempted to deal with the challenges of the statute when fault is used as a litigation ploy by a husband or wife to gain an economic benefit, the most recent decisions unearthed in New York still require severity in the allegations of a complaint pleading a cause of action for cruel and inhuman treatment, in order to be successful. The cases, over and over again, recite the repetitive rubric, that "mere incompatibility" is insufficient to prevail, especially in a marriage of long duration. Does such determination meet the needs of the hundreds of families that find themselves residents in homes where dead marriages exist? Should these New York citizens be forced to flee the jurisdiction and obtain jurisdiction in New Jersey or Connecticut to obtain a divorce and disrupt their lives because the legislature and the courts continue to be obtuse concerning the needs of families in today's society? When I use the term families, it includes the children (who are subjected to the daily strife engendered by a failed marriage), as well as the parents who can no longer maintain a harmonious home environment, filled with love and caring for the needs of one another.

Before addressing these questions, a review of some of the recent decisions in determining cruel and inhuman litigation is important. Moreover, in doing so, it will become quite clear that the need for reform is urgently needed...not in a month or a year, but tomorrow! The reality is that dead marriages need to be buried, with or without a proper funeral, and people freed from the chains of marriage enslavement. It is a colossal bemusement why New York remains the only state in America that insists that its residents burn money and endure psychological trauma to become free at last.

Constitutionality of Fault Divorce

Interestingly, some legal scholars have agreed that New York's divorce laws might even offend the United States Constitution. In one such discourse[i] the author argued that New York's requirement that fault be proven in order for a person to obtain a divorce, impinges upon a citizen's constitutional rights as guaranteed by the Fourteenth Amendment of the Constitution of the United States. By denying a person's ability to divorce another, the court encroaches upon a person's constitutional right to associate (and disassociate) with others of his or her own choice, the right to privacy and the right to be free from arbitrary governmental intrusion, citing Griswold v. Connecticut, 381 US 479 (1965); Eisenstadt v. Baird, 405 US 438 (1972); Roe v. Wade, 410 US 113 (1973); Zablocki v. Redhail, 434 US 374 (1978); and Boddie v. Connecticut, 401 US 371 (1971).

After the divorce reform bill was passed, and the grounds for divorce enlarged from adultery as the sole ground to include cruel and inhuman treatment, the equitable distribution statute was still years away.[ii] Accordingly, when the divorce reform act went into effect, the law still required that a "guilty" wife would forfeit her entitlement to alimony. It was no wonder at that time that the courts sought to require an extremely high burden of proof in marriages of long duration, to protect women from essentially becoming public charges. The earliest case decided by the Court of Appeals was Hessen v. Hessen[iii], where the court articulated the standards to apply in the trial courts in determining whether a divorce based upon cruelty should be granted. The Hessens were married for 25 years, and the high court concluded that the marriage must be deemed one of long duration requiring a high degree of proof to be actionable. By contrast, the court recognized that in marriages of short duration, perhaps several years, a far lesser burden was indicated. The problem with this rule is that neither Hessen nor any other case has defined short term or long term marriages in arithmetic terms, leaving the bench and bar to speculate on the sustainable parameters in each instance.

Brady v. Brady[iv], followed on the heels of Hessen, and once again gave the Court of Appeals the opportunity to right the wrong created by the Hessen rule, or at least to explain in far more detail its holding. Characteristically, the high court evaded the issue even though the Equitable Distribution Law had been enacted, and fault could no longer be a basis for denying support or a property division to a spouse found guilty of cruelty, adultery, or other articulated fault grounds.

Unfortunately, courts have uniformly denied divorce based upon cruel and inhuman treatment, especially where the marriage is of long duration, because the party seeking the divorce failed to convince the courts that the allegations rise above mere incompatibility or proof of an unpleasant or "dead" marriage. Some of the results are remarkable. See Palin v. Palin, 213 AD2d 707 (2d Dept. 1995) (verbal abusive, threats, adultery and one incident of physical assault did not constitute cruelty); Johnson v. Johnson, 103 AD2d 820 (2d Dept. 1984) (frequent absences from the martial home and two assaults in a 29 year marriage did not constitute cruelty); Shortis v. Shortis, 274 AD2d 880 (3rd Dept. 2000) (threat to slit the husband's throat and attempt to choke the husband did not constitute cruelty); Newkirk v. Newkirk, 212 AD2d 951 (3d Dept. 1995) (disparagement in public and private, along with cold and indifferent personal and sexual relations, did not constitute cruelty); Breckinridge v. Breckinridge, 103 AD2d 900 (3d Dept. 1984) (beating the family dog, nearly causing an accident by driving too close to a tractor trailer to scare the wife, uncommunicativeness, excessive criticism, lack of attentiveness and embarrassment did not constitute cruelty); Passantino v. Passantino, 87 AD2d 973 (4th Dept. 1982) (throwing dishes at the husband, pulling his hair and destroying his clothing did not constitute cruelty where court deemed the husband to have provoked such behavior); Fuld v. Fuld, NYLJ, Dec. 12, 1995, at 32, col. 3 (Sup. Ct. Nassau County, O'Brien, J.) (otherwise unreported) (no cruelty in a 45 year marriage where the parties did not speak in three years, lived in separate areas of the house, husband told the wife to "drop dead" and kept the television very loud despite her terminal illness).

Notwithstanding the injustices being heaped upon persons seeking to make a new and better life for themselves and their children, the courts continued to apply rather conservative views and denied divorces because, in their words, a marriage cannot be terminated simply because one party chooses to do so, or for mere incompatibility or lack of vitality. Realizing this quandary, at least two justices have recently refused to be handcuffed to award a divorce where the basic comforts of marriage were absent. In that regard, Justice Anthony Falanga in C.P. v. G.P.[v] ruled that a viable cause of action for divorce could be framed by pleading "An almost total, wilful refusal by the husband to engage in any social intercourse with the wife for a continuous period of more than ten years..." In an intelligent and courageous decision, Justice Falanga reasoned that even though the parties had been married for 33 years, and that a cruelty divorce might be questioned under existing case law, the very core of their marriage had been vitiated by the husbands conduct in refusing to engage in any social interaction for many years. He found that the essence of an abandonment was reflected by the refusal of one spouse "... to fulfill the basic obligations springing from the marital contract."

Justice Falanga continued to explain:

[T]he very core of a marriage is the concept of a ‘relationship.' A defendant spouse who has completely refused to engage in any form of social interaction with the plaintiff spouse, for more than one year prior to the commencement of an action of divorce pursuant to DRL 170(2), without cause or condonation, has unquestionably failed to fulfill a basic obligation arising from the marital contract, thereby abandoning the plaintiff, no less than if the defendant had physically abandoned the plaintiff or unjustifiably refused to engage in sexual relations (emphasis supplied).

Justice Falanga's decision in Nassau County was recently followed by another Supreme Court Justice in Queens County, Hon. Sidney Strauss, in Michaelessi v. Michaelessi[vi]. Acknowledging the holding in C.P. v. G.P., the court reasoned that:

A marriage in which one spouse refuses to engage in any social interaction, despite repeated requests, is just as much a "desertion or abandonment" of a "basic obligation springing from the marital contract" as one in which there are no sexual relations.

These decisions should be required reading for all of the judges in New York who handle divorce matters. They must permit litigants to liberally amend their pleadings or to conform the pleadings to the proof at trial, in all dead marriage situations which are brought on cruelty or abandonment, since it seems likely that the legislature will again fail to act. Anyone going through the divorce process in this state is well advised to find out the names of their state senators and assemblymen who are responsible, by their inaction, in permitting this statute to remain the last archaic remnant of fault divorce in this country.

The recent report of the Miller Commission compels a similar conclusion.

*Elliot Samuelson is the senior partner in the Garden City matrimonial law firm of Samuelson, Hause & Samuelson, LLP and is included in "The Best Lawyers of America" and the "Bar Registry of Preeminent Lawyers in America." He has appeared on both national and regional television and radio programs, including Larry King Live. Mr. Samuelson can be reached at (516) 294-6666 or [email protected].

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