Divorce Granted After Trial Proves Irretrievable Breakdown

Once this issue was worked out, the thinking was that one spouse alone could initiate and ultimately obtain a divorce, and New York would cease to be the once remaining state in the union where people could find themselves literally “trapped” in an unhappy marriage.

However, after New York's no-fault divorce statute went into effect in 2010, controversy quickly developed in the State's legal community over the question whether it granted one party the absolute right to divorce based only on that party's allegation that the marriage was irretrievably broken or, if the other party disagreed, a trial on the question of the marriage's irretrievable breakdown was required. Some courts said a trial was necessary (see, e.g., Strack v. Strack, 31 Misc.3d 258 (Essex Cty. 2011) (Muller, J.)), while others said there was no defense once one party alleged irretrievable breakdown (see, e.g., A.C. v. D.R., 32 Misc.3d 293 (Nassau Cty. 2011)(Falanga, J.)).

The Sorrentino Case

The parties in Sorrentino had been married since 1955 and have four children, all of whom are now adults. They entered into a separation agreement in 1996, and a settlement agreement in 2000 that amended some of the terms of the earlier separation agreement. The plaintiff wife had attempted previously to obtain a divorce on motion, pursuant to DRL ' 170 (7), but it was denied by now-retired judge Donald Blydenburgh, who determined that a trial on the question of irretrievable breakdown of the marriage was required by DRL ' 170 (7).

At trial, the wife told the court that she and her husband had not had sexual relations for at least five years and that they slept in separate bedrooms. She said they socialized and ate their meals separately. She also pointed out that her health was poor, yet her husband had not taken her to a doctor's appointment in five years or inquired after her health for 10. In addition, she claimed he did not make household repairs or pay her dental bills. Two of the couple's children testified on their mother's behalf, corroborating her claims that the parties did not interact except to argue about heating and cooling issues in their home. One of them said that their father had once pushed their mother, and that, on another occasion, he had failed to help her up when she fell down.

At the end of this testimony the wife moved for an order directing judgment of divorce, asserting again that DRL ' 170 (7) requires only the testimony of the plaintiff that the marriage is irretrievably broken. The court reserved its decision on that issue and proceeded to hear the husband's side of the case. He pleaded the affirmative defense of failure to plead a cause of action, asserting that he did not want a divorce, had lived up to his obligations as a husband and had complied with the terms of the separation and settlement agreements. His most compelling argument was that two of the couple's children had put his wife up to the divorce and that because of her advanced age she had been unduly influenced by them to seek one. (Because he had made this allegation pre-trial, a guardian ad litem was appointed for the wife. The guardian reported to the court that the wife seemed competent and that he supported her determination to pursue the divorce.)

The Need for Trial

The court began its analysis of the case with the question of whether trial was required at all in this situation. Since the A.C. v. D.R. and Strack courts had disagreed, and other case law was lacking, the court turned its attention to deciphering the legislature's intent in enacting DRL ' 170 (7). The main argument it found in favor of a need for a court finding that a marriage is truly broken down was the fact that the legislature left intact the other, fault-based, grounds for divorce ' i.e., constructive abandonment, adultery, cruel and inhuman treatment ' that were in place prior to the enactment of ' 170 (7). All of these require proof, and the court found nothing to indicate that the legislature, in enacting ' 170 (7), intended that this section be an exception to the rule. On the contrary, Judge Quinn found that the husband had raised “affirmative defenses under CPLR 3018 (b), which the Court was required to consider.” The judge also pointed to four decisions from other states in which courts there held that the determination of whether a marriage has irretrievably broken down is a matter for the courts. (The dates of these four cases ranged from 1925 to 1952.) Based on these authorities, Judge Quinn determined the plaintiff wife was not entitled to a divorce at the conclusion of her case alone.

Despite this, the court granted the divorce, finding that the wife, through her own testimony and that of her children and husband, had proven that the marriage had irretrievably broken down for a period of more than six months.

Who's to Say?

Although the no-fault divorce ground was interpreted by some to do away with the need for trial on the merits, it is apparent that others are reading it simply as one more ground that must be proven. It does not matter that one party has sworn, under oath, that the marriage is dead; if the other party wants to stay married, a trial is in order.

One valid defense to a divorce complaint brought under DRL ' 170 (7) would be that the couple's marriage breakdown has lasted less than six months. But, otherwise, what proof would suffice to put a halt to the proceedings? In Sorrentino, the proof adduced included actions that have traditionally been argued when seeking to prove some of the fault bases for a New York divorce. For example, the wife pointed out that the parties had not had marital relations for several years, a pre-requisite to a finding of constructive abandonment. (The court did not, however, require her to prove another element of that ground: that she had attempted to have sexual relations with her husband but he had refused her without good reason. The husband, in fact, offered such a reason: that their relationship had broken down after the wife had an abortion.) The wife and her children also testified that the parties did not socialize together or make any efforts to take care of one another's needs ' points often made in support of a bid for divorce based on cruel and inhuman treatment.

But why should obtaining a no-fault divorce require a showing of fault? Suppose the Sorrentinos' children had testified that their parents got along just fine and that they had always been happy together. Would those statements, even coupled with the husband's corroborating testimony, have carried more weight than that of a woman who presumably would not be in court unless she wanted out of her marriage? Just how would a court go about telling her, “You may think your marriage is broken but, in this court's opinion, it really is not. Go back home and give it another chance!” It's hard to imagine that this was what the legislature intended when it amended DRL ' 170 to include, for the first time in New York's history, a no-fault ground for divorce.

In what was apparently the first trial of a contested no-fault divorce under New York's recently enacted Domestic Relations Law (DRL) ' 170 (7), Suffolk County Acting Supreme Court Judge James F. Quinn on Jan. 12 declared a 56-year marriage irretrievably broken and granted the plaintiff wife's request for divorce. Sorrentino v. Sorrentino, 13315/11. The fact that a trial was required in the case was notable in itself, but its outcome pointed out the seeming futility of such a prerequisite to divorce under ' 170 (7).

An Easier Basis for Divorce?

Domestic Relations Law (DRL) ' 170 (7) became effective on Oct. 20, 2010. It permits divorce where “[t]he 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.” The only immediately apparent impediment to divorce under ' 170 (7) is the caveat that divorce may not be granted until “the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and expert's fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved” either by the parties or by court order. These requirements were included in the statute in large part out of fear that the introduction of a no-fault ground for divorce would take away the non-moneyed (or otherwise less powerful) spouse's traditional trump card for achieving an advantageous settlement; the withholding of agreement to divorce until satisfactory financial and child custody concessions were made.

Once this issue was worked out, the thinking was that one spouse alone could initiate and ultimately obtain a divorce, and New York would cease to be the once remaining state in the union where people could find themselves literally “trapped” in an unhappy marriage.

However, after New York's no-fault divorce statute went into effect in 2010, controversy quickly developed in the State's legal community over the question whether it granted one party the absolute right to divorce based only on that party's allegation that the marriage was irretrievably broken or, if the other party disagreed, a trial on the question of the marriage's irretrievable breakdown was required. Some courts said a trial was necessary ( see, e.g., Strack v. Strack , 31 Misc.3d 258 (Essex Cty. 2011) (Muller, J.)), while others said there was no defense once one party alleged irretrievable breakdown ( see, e.g., A.C. v. D.R. , 32 Misc.3d 293 (Nassau Cty. 2011)(Falanga, J.)).

The Sorrentino Case

The parties in Sorrentino had been married since 1955 and have four children, all of whom are now adults. They entered into a separation agreement in 1996, and a settlement agreement in 2000 that amended some of the terms of the earlier separation agreement. The plaintiff wife had attempted previously to obtain a divorce on motion, pursuant to DRL ' 170 (7), but it was denied by now-retired judge Donald Blydenburgh, who determined that a trial on the question of irretrievable breakdown of the marriage was required by DRL ' 170 (7).

At trial, the wife told the court that she and her husband had not had sexual relations for at least five years and that they slept in separate bedrooms. She said they socialized and ate their meals separately. She also pointed out that her health was poor, yet her husband had not taken her to a doctor's appointment in five years or inquired after her health for 10. In addition, she claimed he did not make household repairs or pay her dental bills. Two of the couple's children testified on their mother's behalf, corroborating her claims that the parties did not interact except to argue about heating and cooling issues in their home. One of them said that their father had once pushed their mother, and that, on another occasion, he had failed to help her up when she fell down.

At the end of this testimony the wife moved for an order directing judgment of divorce, asserting again that DRL ' 170 (7) requires only the testimony of the plaintiff that the marriage is irretrievably broken. The court reserved its decision on that issue and proceeded to hear the husband's side of the case. He pleaded the affirmative defense of failure to plead a cause of action, asserting that he did not want a divorce, had lived up to his obligations as a husband and had complied with the terms of the separation and settlement agreements. His most compelling argument was that two of the couple's children had put his wife up to the divorce and that because of her advanced age she had been unduly influenced by them to seek one. (Because he had made this allegation pre-trial, a guardian ad litem was appointed for the wife. The guardian reported to the court that the wife seemed competent and that he supported her determination to pursue the divorce.)

The Need for Trial

The court began its analysis of the case with the question of whether trial was required at all in this situation. Since the A.C. v. D.R. and Strack courts had disagreed, and other case law was lacking, the court turned its attention to deciphering the legislature's intent in enacting DRL ' 170 (7). The main argument it found in favor of a need for a court finding that a marriage is truly broken down was the fact that the legislature left intact the other, fault-based, grounds for divorce ' i.e., constructive abandonment, adultery, cruel and inhuman treatment ' that were in place prior to the enactment of ' 170 (7). All of these require proof, and the court found nothing to indicate that the legislature, in enacting ' 170 (7), intended that this section be an exception to the rule. On the contrary, Judge Quinn found that the husband had raised “affirmative defenses under CPLR 3018 (b), which the Court was required to consider.” The judge also pointed to four decisions from other states in which courts there held that the determination of whether a marriage has irretrievably broken down is a matter for the courts. (The dates of these four cases ranged from 1925 to 1952.) Based on these authorities, Judge Quinn determined the plaintiff wife was not entitled to a divorce at the conclusion of her case alone.

Despite this, the court granted the divorce, finding that the wife, through her own testimony and that of her children and husband, had proven that the marriage had irretrievably broken down for a period of more than six months.

Who's to Say?

Although the no-fault divorce ground was interpreted by some to do away with the need for trial on the merits, it is apparent that others are reading it simply as one more ground that must be proven. It does not matter that one party has sworn, under oath, that the marriage is dead; if the other party wants to stay married, a trial is in order.

One valid defense to a divorce complaint brought under DRL ' 170 (7) would be that the couple's marriage breakdown has lasted less than six months. But, otherwise, what proof would suffice to put a halt to the proceedings? In Sorrentino, the proof adduced included actions that have traditionally been argued when seeking to prove some of the fault bases for a New York divorce. For example, the wife pointed out that the parties had not had marital relations for several years, a pre-requisite to a finding of constructive abandonment. (The court did not, however, require her to prove another element of that ground: that she had attempted to have sexual relations with her husband but he had refused her without good reason. The husband, in fact, offered such a reason: that their relationship had broken down after the wife had an abortion.) The wife and her children also testified that the parties did not socialize together or make any efforts to take care of one another's needs ' points often made in support of a bid for divorce based on cruel and inhuman treatment.

But why should obtaining a no-fault divorce require a showing of fault? Suppose the Sorrentinos' children had testified that their parents got along just fine and that they had always been happy together. Would those statements, even coupled with the husband's corroborating testimony, have carried more weight than that of a woman who presumably would not be in court unless she wanted out of her marriage? Just how would a court go about telling her, “You may think your marriage is broken but, in this court's opinion, it really is not. Go back home and give it another chance!” It's hard to imagine that this was what the legislature intended when it amended DRL ' 170 to include, for the first time in New York's history, a no-fault ground for divorce.