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Litigation
Old Divorce Law Still Applies
As Judge Rebuffs Attempt to Show Fault
A recently dismissed Nassau County divorce action, which was filed by a Garden City, NY, woman against her husband of more than 30 years, presented many of the problems that the state's new “no-fault” divorce law is intended to alleviate.
To establish the grounds of constructive abandonment ' that her husband refused to have sex with her for at least one year ' the plaintiff-wife had to take the stand in an open courtroom and answer personal and potentially embarrassing questions about her sex life, such as, “When was the last time you had sexual relations with your husband?”
In response to that particular question, plaintiff Sandra McPhee told the judge that she and her husband had not had sex since their honeymoon in 1979. Ms. McPhee's own counsel quickly reminded her that she and Mr. Miniero had since had two children. Her memory refreshed, Ms. McPhee said she and her husband had not had sexual relations since December 2001, or at least over the last three years.
The judge inquired whether she had asked her husband to engage in sex since then and she responded in the negative. The judge later dismissed the case on the grounds that Ms. McPhee failed to establish her sole pleaded grounds for divorce, constructive abandonment.
McPhee v. Miniero is also unlikely to constitute the final New York divorce action thrown out for a lack of cause, notwithstanding the new law's effective-date. The new statute does not grandfather in ongoing actions ' any case filed before Oct. 12 must still plead one of the six forms of fault described in Domestic Relations Law ' 170.1-170.6. Furthermore, the new law does not end the fault requirement per se, but rather simply adds a seventh ground for divorce, DRL ' 170.7 ' that the relationship has broken down irretrievably for a period of at least six months.
' Mark Fass, New York Law Journal
Old Divorce Law Still Applies
As Judge Rebuffs Attempt to Show Fault
A recently dismissed Nassau County divorce action, which was filed by a Garden City, NY, woman against her husband of more than 30 years, presented many of the problems that the state's new “no-fault” divorce law is intended to alleviate.
To establish the grounds of constructive abandonment ' that her husband refused to have sex with her for at least one year ' the plaintiff-wife had to take the stand in an open courtroom and answer personal and potentially embarrassing questions about her sex life, such as, “When was the last time you had sexual relations with your husband?”
In response to that particular question, plaintiff Sandra McPhee told the judge that she and her husband had not had sex since their honeymoon in 1979. Ms. McPhee's own counsel quickly reminded her that she and Mr. Miniero had since had two children. Her memory refreshed, Ms. McPhee said she and her husband had not had sexual relations since December 2001, or at least over the last three years.
The judge inquired whether she had asked her husband to engage in sex since then and she responded in the negative. The judge later dismissed the case on the grounds that Ms. McPhee failed to establish her sole pleaded grounds for divorce, constructive abandonment.
McPhee v. Miniero is also unlikely to constitute the final
' Mark Fass,
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