Court Orders Trial to Consider State of Marriage Under No-Fault

An upstate judge has become the second to rule that a trial is required if a party disputes the factual underpinnings of a claim under the state's new no-fault divorce law, a measure aimed in part at eliminating the need for lengthy and expensive legal proceedings in contested divorces. Essex County Justice Robert J. Muller ruled on Feb. 1 that an “immediate trial” was required to resolve whether a 47-year marriage has “broken down irretrievably,” as is specified in the language of the no-fault statute, Domestic Relations Law ' 170(7), which took effect in October.

Justice Muller's ruling in Strack v. Strack, 841/10, follows the Jan. 26 short-form order of Brooklyn Justice Eric I. Prus requiring a trial in Stroffolino v. Stroffolino, 55910/10. That case had been appealed to the Appellate Division, Second Department, said Patricia A. Fersch, who represents the wife in Stroffolino.

The Strack Case

In the Essex County case, Judith A. Strack sought a no-fault divorce, claiming her marriage was irretrievably broken because she and her husband, Jeremiah F. Strack, lived apart during the winter months and had separate interests and social schedules. She also stated that there is “no emotion” in the marriage. Mr. Strack disputed his wife's claims and asked for summary judgment on the issue. Justice Muller denied summary judgment, but granted an immediate trial. He did not address the issue of pretrial discovery.

Not the Shortcut Many Envisioned

In his opinion, Justice Muller recognized that “clearly, the tenor” of the new law's legislative history, as voiced by both legislators and its proponents, was that no-fault divorce would “lessen litigation,” which was viewed as “time-consuming and expensive for all, including the judiciary.”

Nonetheless, Justice Muller noted that the new law is “not a panacea for those hoping to avoid trial.” Rather, he wrote, “it is simply a new cause of action subject to the same rules of practice governing the subdivisions which have preceded it.” Specifically, he noted that DRL ' 173, which provides for a right to trial by jury on the issue of grounds in divorces, was not amended to exempt the new no-fault provision.

More Clarification Needed

Sondra Miller, the former Second Department justice who headed a commission appointed by former Chief Judge Judith S. Kaye to examine the state's matrimonial laws, disagreed with Justice Muller's conclusion stating that the “irretrievably broken” language must be read
in the context within which it was written.

As amended, DRL ' 170 now reads: “An action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on any of the following grounds … (7) The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath.”

“It is quite clear,” Miller said, that the “purpose” of the language referring to an oath provided by “one party” was to “avoid litigation. It was not the intent of the Legislature and the bill's sponsors to avoid litigation on fault grounds only to substitute litigation upon the ground of irretrievable breakdown,” added Ms. Miller, who is now chief counsel at McCarthy Fingar in White Plains. “The statute was designed to avoid the expense and delay of full trials.”

Ms. Fersch, who represents the wife in the Stroffolino case, said that matrimonial judges in Manhattan thus far have found no-fault grounds for divorce based on strength of just one side's sworn statement. Without a ruling from a higher court, she said, trials in no-fault cases around the state will continue when a judge “for whatever reason believes there is an issue to be tried.”

Ms. Fersch's client asserts that the marriage has been irretrievably broken. The husband-defendant has disputed that claim. He is represented by Lloyd D. Thompson, who was unavailable for comment. Tina J. Soloski of Anderson & Soloski in Plattsburgh, who represents Ms. Strack, declined to comment, as did Veronica C. O'Dell of O'Dell & O'Dell in Glens Falls, who represents Mr. Strack.

Litigants Slow to Warm to No-Fault

Chief Judge Jonathan Lippman said in a recent interview that the courts have not seen a surge in divorce filings since no-fault went into effect. He added that spouses representing themselves have seemed reluctant to embrace no-fault, opting instead to pursue fault-based grounds.

“There is so much emotion and trauma that goes into matrimonial litigation in general, but particularly when it is unfiltered by lawyers, and for the pro ses, they do not want to know necessarily about new legislation,” Judge Lippman said. “They want their kind of victory in an emotionally charged way. They want to show fault. They do not want to let it go.”

While people criticize matrimonial lawyers, he said, they “serve to put a little context into the matrimonial proceeding.” Pro se litigants “just don't have that filter and in their own way they want to get back at their spouse. It sort of goes against the grain of the statute,” he said, which is intended to avoid adversarial proceeding.

Daniel Wise, a reporter with the New York Law Journal, an ALM sister publication of this newsletter, can be reached at [email protected].

An upstate judge has become the second to rule that a trial is required if a party disputes the factual underpinnings of a claim under the state's new no-fault divorce law, a measure aimed in part at eliminating the need for lengthy and expensive legal proceedings in contested divorces. Essex County Justice Robert J. Muller ruled on Feb. 1 that an “immediate trial” was required to resolve whether a 47-year marriage has “broken down irretrievably,” as is specified in the language of the no-fault statute, Domestic Relations Law ' 170(7), which took effect in October.

Justice Muller's ruling in Strack v. Strack, 841/10, follows the Jan. 26 short-form order of Brooklyn Justice Eric I. Prus requiring a trial in Stroffolino v. Stroffolino, 55910/10. That case had been appealed to the Appellate Division, Second Department, said Patricia A. Fersch, who represents the wife in Stroffolino.

The Strack Case

In the Essex County case, Judith A. Strack sought a no-fault divorce, claiming her marriage was irretrievably broken because she and her husband, Jeremiah F. Strack, lived apart during the winter months and had separate interests and social schedules. She also stated that there is “no emotion” in the marriage. Mr. Strack disputed his wife's claims and asked for summary judgment on the issue. Justice Muller denied summary judgment, but granted an immediate trial. He did not address the issue of pretrial discovery.

Not the Shortcut Many Envisioned

In his opinion, Justice Muller recognized that “clearly, the tenor” of the new law's legislative history, as voiced by both legislators and its proponents, was that no-fault divorce would “lessen litigation,” which was viewed as “time-consuming and expensive for all, including the judiciary.”

Nonetheless, Justice Muller noted that the new law is “not a panacea for those hoping to avoid trial.” Rather, he wrote, “it is simply a new cause of action subject to the same rules of practice governing the subdivisions which have preceded it.” Specifically, he noted that DRL ' 173, which provides for a right to trial by jury on the issue of grounds in divorces, was not amended to exempt the new no-fault provision.

More Clarification Needed

Sondra Miller, the former Second Department justice who headed a commission appointed by former Chief Judge Judith S. Kaye to examine the state's matrimonial laws, disagreed with Justice Muller's conclusion stating that the “irretrievably broken” language must be read
in the context within which it was written.

As amended, DRL ' 170 now reads: “An action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on any of the following grounds … (7) The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath.”

“It is quite clear,” Miller said, that the “purpose” of the language referring to an oath provided by “one party” was to “avoid litigation. It was not the intent of the Legislature and the bill's sponsors to avoid litigation on fault grounds only to substitute litigation upon the ground of irretrievable breakdown,” added Ms. Miller, who is now chief counsel at McCarthy Fingar in White Plains. “The statute was designed to avoid the expense and delay of full trials.”

Ms. Fersch, who represents the wife in the Stroffolino case, said that matrimonial judges in Manhattan thus far have found no-fault grounds for divorce based on strength of just one side's sworn statement. Without a ruling from a higher court, she said, trials in no-fault cases around the state will continue when a judge “for whatever reason believes there is an issue to be tried.”

Ms. Fersch's client asserts that the marriage has been irretrievably broken. The husband-defendant has disputed that claim. He is represented by Lloyd D. Thompson, who was unavailable for comment. Tina J. Soloski of Anderson & Soloski in Plattsburgh, who represents Ms. Strack, declined to comment, as did Veronica C. O'Dell of O'Dell & O'Dell in Glens Falls, who represents Mr. Strack.

Litigants Slow to Warm to No-Fault

Chief Judge Jonathan Lippman said in a recent interview that the courts have not seen a surge in divorce filings since no-fault went into effect. He added that spouses representing themselves have seemed reluctant to embrace no-fault, opting instead to pursue fault-based grounds.

“There is so much emotion and trauma that goes into matrimonial litigation in general, but particularly when it is unfiltered by lawyers, and for the pro ses, they do not want to know necessarily about new legislation,” Judge Lippman said. “They want their kind of victory in an emotionally charged way. They want to show fault. They do not want to let it go.”

While people criticize matrimonial lawyers, he said, they “serve to put a little context into the matrimonial proceeding.” Pro se litigants “just don't have that filter and in their own way they want to get back at their spouse. It sort of goes against the grain of the statute,” he said, which is intended to avoid adversarial proceeding.

Daniel Wise, a reporter with the New York Law Journal, an ALM sister publication of this newsletter, can be reached at [email protected].