Absence of No-Fault Divorce Encourages Perjury, Judge Says

Calling New York's failure to institute no-fault divorce “inexcusable,” a Manhattan judge has concluded that a husband should not be held liable for perjury for claiming he had not had sex with his wife for more than a year, during which time she gave birth. “[T]he question of whether plaintiff embellished the truth or even told outright lies in order to obtain the parties' uncontested divorce strikes me as far less important than resolving the issue” of parentage, which is in the child's best interests, Acting Supreme Court Justice Matthew F. Cooper wrote in ordering a paternity test.

“It is clearly time for the Empire State, as it is known, to reject a view of marriage that is more reflective of the time of the Empire of Queen Victoria than it is of the second decade of the 21st Century and at long last adopt the reforms that bar associations and citizen groups of all kinds have been demanding for years,” Justice Cooper wrote in Andrew T. v. Yana T., 310049/07.

The Divorce Proceedings

The parties married in July 2006. Fifteen months later, Mr. Turchin moved for divorce in 2007, alleging that starting on Aug. 1, 2006, and continuing for a period of more than one year, Ms. Turchin “refused to have sexual relations with the plaintiff despite plaintiff's repeated requests to resume such relations.” Since New York does not permit no-fault divorce, a party must assert one of six grounds, one of which is constructive or sexual abandonment, which according to Justice Cooper, has become the “ground of choice” in uncontested divorce proceedings. (See article on page one.)

Ms. Turchin did not dispute the allegation of abandonment and agreed to the matter being placed immediately on the uncontested divorce calendar. On June 2, 2008, the couple signed a separation and property agreement. In July 2008, a judgment was entered dissolving the marriage based on Ms. Turchin's constructive abandonment.

While the judgment stated that the couple did not have or expect any children as a result of the marriage, according to the decision, Ms. Turchin had given birth in March 2008. In August 2009, Mr. Turchin, who claimed he only learned about the child, Ethan, after the divorce, moved for an order compelling paternity testing. Ms. Turchin countered that her ex-husband should be estopped from proving he was Ethan's father, since he previously had sworn that he had not slept with her for more than a year before filing for divorce. Ms. Turchin then accused her ex-husband of perjury during the divorce proceedings.

Test in Child's Best Interest

Justice Cooper concluded that “[a]lthough perjury of any kind is not to be condoned, the context in which it arises must be taken into consideration.” He pointed out that New York's lack of a “true no-fault basis” for divorce not only forces “the person obtaining the divorce to swear to things that everybody knows are untrue, but it forces judges and special referees ' to in effect turn a blind eye 'or at least a myopic eye ' to what is technically perjury.”

In this case, “the divorced household includes an infant boy, who according to his birth certificate, is essentially fatherless,” the judge wrote. In addition to a presumption of legitimacy, which “still holds sway” even in “this age of unerringly accurate paternity testing,” the child's best interest and Mr. Turchin's “request for paternity testing go firmly hand-in-hand,” Justice Cooper held.

He added that while Ms. Turchin's claims that her ex-husband's perjury to the court was “blatant, obvious and must be punished,” she failed to address her own complicity in that matter. He noted that she did not inform the court that she was pregnant or had given birth, and that she consented to the divorce being based on the allegation that she had refused to have sex with Mr. Turchin for more than a year.

A 'Victimless Crime'

The judge also refused to refer Mr. Turchin's alleged perjury to the district attorney's office. “[I]f plaintiff did in fact make a false statement under oath in this matter, it was done for the benefit of both parties, so they could bypass the unreasonable hurdles that New York law imposes on couples who wish to dissolve their marriage by mutual consent. In short, if ever there was a victimless crime, this is it,” the judge wrote.

Justice Cooper called it “unfortunate” that New York, which “prides itself on being so forward-thinking in so many ways, is positively regressive as concerns the institutions of marriage.” Until the state permits “no-longer-loving, consenting adults to obtain a divorce for reasons that are real rather than fabricated so as to meet some archaic legal requirement,” the “integrity of our legal system here in New York will continue to be needlessly compromised,” the judge concluded.

In a separate order, Justice Cooper ordered the parties to undergo a genetic marker test to determine Ethan's paternity.

Conclusion

In recent years, a number of bills have been introduced in the New York Legislature providing for a no-fault option. However, in spite of broad-based support from law groups, including the family law section of the New York State Bar Association and the New York chapter of the American Academy of Matrimonial Lawyers, legislative efforts have stalled and New York remains the last state in the country without some form of no-fault divorce.

Phillip Sherwood Greenhaus, a solo practitioner who represented Mr. Turchin before Justice Cooper, called New York's failure to allow no-fault divorce a “sad state of affairs.” Dominic A. Barbara of the Barbara Law Firm represented Ms. Turchin.

Noeleen G. Walder is a reporter with the New York Law Journal, a sister publication of this newsletter. She can be reached at [email protected].

Calling New York's failure to institute no-fault divorce “inexcusable,” a Manhattan judge has concluded that a husband should not be held liable for perjury for claiming he had not had sex with his wife for more than a year, during which time she gave birth. “[T]he question of whether plaintiff embellished the truth or even told outright lies in order to obtain the parties' uncontested divorce strikes me as far less important than resolving the issue” of parentage, which is in the child's best interests, Acting Supreme Court Justice Matthew F. Cooper wrote in ordering a paternity test.

“It is clearly time for the Empire State, as it is known, to reject a view of marriage that is more reflective of the time of the Empire of Queen Victoria than it is of the second decade of the 21st Century and at long last adopt the reforms that bar associations and citizen groups of all kinds have been demanding for years,” Justice Cooper wrote in Andrew T. v. Yana T., 310049/07.

The Divorce Proceedings

The parties married in July 2006. Fifteen months later, Mr. Turchin moved for divorce in 2007, alleging that starting on Aug. 1, 2006, and continuing for a period of more than one year, Ms. Turchin “refused to have sexual relations with the plaintiff despite plaintiff's repeated requests to resume such relations.” Since New York does not permit no-fault divorce, a party must assert one of six grounds, one of which is constructive or sexual abandonment, which according to Justice Cooper, has become the “ground of choice” in uncontested divorce proceedings. (See article on page one.)

Ms. Turchin did not dispute the allegation of abandonment and agreed to the matter being placed immediately on the uncontested divorce calendar. On June 2, 2008, the couple signed a separation and property agreement. In July 2008, a judgment was entered dissolving the marriage based on Ms. Turchin's constructive abandonment.

While the judgment stated that the couple did not have or expect any children as a result of the marriage, according to the decision, Ms. Turchin had given birth in March 2008. In August 2009, Mr. Turchin, who claimed he only learned about the child, Ethan, after the divorce, moved for an order compelling paternity testing. Ms. Turchin countered that her ex-husband should be estopped from proving he was Ethan's father, since he previously had sworn that he had not slept with her for more than a year before filing for divorce. Ms. Turchin then accused her ex-husband of perjury during the divorce proceedings.

Test in Child's Best Interest

Justice Cooper concluded that “[a]lthough perjury of any kind is not to be condoned, the context in which it arises must be taken into consideration.” He pointed out that New York's lack of a “true no-fault basis” for divorce not only forces “the person obtaining the divorce to swear to things that everybody knows are untrue, but it forces judges and special referees ' to in effect turn a blind eye 'or at least a myopic eye ' to what is technically perjury.”

In this case, “the divorced household includes an infant boy, who according to his birth certificate, is essentially fatherless,” the judge wrote. In addition to a presumption of legitimacy, which “still holds sway” even in “this age of unerringly accurate paternity testing,” the child's best interest and Mr. Turchin's “request for paternity testing go firmly hand-in-hand,” Justice Cooper held.

He added that while Ms. Turchin's claims that her ex-husband's perjury to the court was “blatant, obvious and must be punished,” she failed to address her own complicity in that matter. He noted that she did not inform the court that she was pregnant or had given birth, and that she consented to the divorce being based on the allegation that she had refused to have sex with Mr. Turchin for more than a year.

A 'Victimless Crime'

The judge also refused to refer Mr. Turchin's alleged perjury to the district attorney's office. “[I]f plaintiff did in fact make a false statement under oath in this matter, it was done for the benefit of both parties, so they could bypass the unreasonable hurdles that New York law imposes on couples who wish to dissolve their marriage by mutual consent. In short, if ever there was a victimless crime, this is it,” the judge wrote.

Justice Cooper called it “unfortunate” that New York, which “prides itself on being so forward-thinking in so many ways, is positively regressive as concerns the institutions of marriage.” Until the state permits “no-longer-loving, consenting adults to obtain a divorce for reasons that are real rather than fabricated so as to meet some archaic legal requirement,” the “integrity of our legal system here in New York will continue to be needlessly compromised,” the judge concluded.

In a separate order, Justice Cooper ordered the parties to undergo a genetic marker test to determine Ethan's paternity.

Conclusion

In recent years, a number of bills have been introduced in the New York Legislature providing for a no-fault option. However, in spite of broad-based support from law groups, including the family law section of the New York State Bar Association and the New York chapter of the American Academy of Matrimonial Lawyers, legislative efforts have stalled and New York remains the last state in the country without some form of no-fault divorce.

Phillip Sherwood Greenhaus, a solo practitioner who represented Mr. Turchin before Justice Cooper, called New York's failure to allow no-fault divorce a “sad state of affairs.” Dominic A. Barbara of the Barbara Law Firm represented Ms. Turchin.

Noeleen G. Walder is a reporter with the New York Law Journal, a sister publication of this newsletter. She can be reached at [email protected].