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No-Fault Divorce? Maybe Yogi Was Right

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Last summer, former Governor Paterson signed a bill making New York the 50th and final state to enact no-fault divorce. Sponsors said a complaint for no-fault divorce would be irrefutable and thus obviate the need for any trial whatsoever with respect to grounds. I was heartbroken when I heard about the bill; to me, standing up for marriage and family in America now was truly an impossible dream.

Under the new statute, parties no longer need prove fault or that they've lived apart under a separation agreement for one year in order to obtain a divorce. Now, they can opt for no-fault by alleging under oath that the marriage has "broken down irretrievably for a period of at least six months." According to Elliott Scheinberg, an appellate attorney whose practice is limited to matrimonial law, the statute allows for unilateral exit from marriage based solely on the subjective view of the party suing for divorce, no defense to no-fault permissible. In other words, presumably, merely swearing under oath makes it so. Pleading specifics, he says, can also open up a "can of worms."

Well, the can of worms has now been opened. On Friday, Veronica O'Dell, counsel for the defense in Strack v. Strack, received a copy of a notice of appeal to the New York Appellate Division, Third Department, challenging the decision of Justice Robert Muller of the Supreme Court in Essex County. The pending appeal indicates that the celebrants who pushed through New York's no-fault may have uncorked the champagne a bit too early. (This is despite rumors that judges in Manhattan are placing their stamp of approval on no-fault divorce purely on the basis of the moving party's sworn statement.)

In Strack, Justice Muller held that the defendant was entitled to a trial to determine if the parties' 47-year marriage had "broken down irretrievably." While the plaintiff did not technically assess blame, her complaint alleged that the parties had no emotion in their marriage, kept separate vacation and social schedules and lived separately during most of the winter. In ordering an immediate trial on the issue of whether the couple's relationship had in fact broken down irretrievably, Justice Muller wrote that the new statute "is not a panacea for those hoping to avoid a trial. Rather, it is simply a new cause of action subject to the same rules of practice governing the subdivisions which have preceded it." This is particularly true, he said, because the legislature failed to define irretrievably broken, thereby leaving determination to the finder of fact. In other words, Mr. Strack had the right to be heard and contest his wife's claim that the marriage was irretrievably broken, even though divorce might ultimately be granted over his objection.

Curiously, the defendant was sued by his wife twice before, in 1986 and 1990; each time, however, the couple, now in their 70s, reconciled.

Justice Muller also held that the defendant was entitled to trial by jury if he so elected since the legislature failed to exempt no-fault divorce from § 173 of the Domestic Relations Law which grants the right to trial by jury in divorce actions. O'Dell told me that trial is currently scheduled for June, that discovery is underway, and that her client intends on seeking a jury trial. To date, she has received no motion to stay the trial pending appeal.

Last month, another appeal had been pending before New York Appellate Division, Second Department, in the matter of Stroffolino v. Stroffolino, a matrimonial case in which Brooklyn Justice Eric Prus had similarly ordered the parties to proceed to trial on no-fault grounds. Attorney for the defendant, Lloyd Thompson, told me, however, that the matter of grounds has now been resolved, rendering the appeal moot.

It's unclear whether even more cases of discontent by spouses who have no say in the ending of their marriages are brewing in the New York courts. At a recent bar association presentation, I asked one of New York's matrimonial judges whether spouses were contesting lawsuits filed against them under New York's no-fault statute and, if so, how judges were responding. He declined to comment, stating that the judicial canon of ethics precluded him from doing so.

"He was just ducking the issue," one of New York's most high-powered matrimonial attorneys, who asked that his name not be mentioned, told me yesterday.

The upshot is anyone's guess at this point. Those familiar with the no-fault battle may recall that one of the reasons floated for the new statute was the elimination of institutionalized perjury - for years spouses who wanted to get around the statute had been cooking up fault, with one party agreeing to lie under oath and assume the blame. Yet isn't the sham that was drummed up to replace it, where cause is purportedly unnecessary and one party is able to chuck a marriage and family, far worse? Isn't an "irretrievably broken" standard meaningless if its only purpose is to give the law a veneer of respectability, when in fact divorce can be granted on one party's subjective say so alone? Indeed, if one spouse can obtain a divorce merely for the asking, lying is simply irrelevant, as are the reasons for wanting out, including that the marriage is "irretrievably broken." How is no-fault divorce then any different from saying "I divorce you three times?" Perhaps that's just what nagged at Justice Muller.

And so, in the immortal words of Yogi Berra: "It ain't over till it's over."

Would that the ongoing debate would forge understanding, compassion and a true meeting of the minds about an effective way to restore marriages and preserve families.