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Doug Kepanis

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Does No Fault Divorce Require Fault?

Posted: 10/12/11 01:35 PM ET

On October 12, 2010, New York's "no fault" divorce law went into effect. Although the term "no fault" is not actually contained in the statute, the common sense interpretation thereof, or so we all thought, was that New York residents who wanted a divorce would no longer have to allege fault. Such is not the case as an interpretative debate has now erupted in the lower courts of New York.

In the case of Strack v. Strack, a wife sought to divorce her husband based on the New York "no fault" divorce statute. She alleged, in accordance with the statute, that "the relationship between husband and wife has broken down such that it is irretrievable and has been for a period of at least six months." This is basically a paraphrase of the actual law.

However, Judge Robert J. Muller of Essex County pondered the following question: "Whether the [wife's] unilateral statement under oath is irrefutable...or [is] defendant to be afforded the same...due process as is available for any other cause of action in our jurisprudence." His ultimate answer...drum roll please...was that the "no fault" statute was "...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."

So, it seems that at least one Judge has decided that "no fault" is not "no fault" after all. But wait, a challenger enters the ring...Judge Anthony J. Falanga of Nassau County, a Judge I have actually appeared before. In the cases of A.C. v. D.R. and D.R.C. v. A.C. , Judge Falanga was faced with the same decision that Judge Muller in Essex County faced -- whether or not New York's new "no fault" grounds for divorce was truly "no fault". Judge Falanga took a time machine back to 1822 to cite a New York case that held that "there can be no such thing as an indissoluble partnership" (The case, Skinner v. Dayton, was actually discussing business partnerships, not marital). He then looked outside the State of New York to a Massachusetts case, Caffyn v. Caffyn, for the proposition that "it is sufficient that one or both of the parties subjectively decide that their marriage is over and there is no hope for reconciliation". To sum it all up, Judge Falanga held that "[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."

Now, if you have made it this far expecting me to choose a side, you clearly do not know me all that well. I am not going to force your hand and attempt to persuade you one way or the other (I save that for the courtroom). My intent herein was to get you, the reader, involved. I want to hear your thoughts and comments on which side of the "no fault" debate you land on. Happy debating!

 

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