Escaping a Rotten Marriage in New York: Not So Fast

By:  Esther Schonfeld, Esq. & Deena Kessler, Esq.

One of our client’s and her husband of 21 years were embroiled in a bitter divorce trial in a Manhattan courtroom.  Watching the divorce trial was like watching the super bowl, you didn’t want to miss a second.  The couple, who married during the husband’s first year of medical school and had accrued substantial assets during the course of their marriage, were embarked on the first, and arguably most critical phase of their divorce action:  the Grounds Trial.  The wife had worked to support the family while the husband pursued his medical degree and she had since been a homemaker and full time mother raising the couple’s two, now teenaged children.  The couple’s marriage had been falling apart for years, and each admitted that the relationship was over.  Nonetheless, in an attempt to protect what he perceived to be his fortune, the husband’s litigation strategy was to deny his wife’s request for a divorce so as to avoid the distribution of property by the Court since the court cannot divide property without the marriage ending.  The grounds alleged by the wife included cruel and inhuman treatment and adultery and we were prepared to prove that the husband had been cruel to the Wife for the past five years and that the husband had involved in an extramarital relationship for several years.   In opening statements, the husband was portrayed as a chronic philanderer and a compulsive gambler whose habit cost the couple hundreds of thousands of dollars a year.  Clutching a box of Kleenex in her hands, our 45 year old, impeccably dressed and well coifed client fought back tears as she described the humiliation of discovering her husband’s infidelity and the foibles that she claimed led to the breakup of their marriage.  The husband, of course, denied any infidelity and claimed that the wife’s true motivation in seeking a divorce was to punish the husband for his refusal to tolerate her out of control spending.  As counsel for the wife, winning this leg of the trial, known as a “Grounds Trial” was crucial, since in New York, a couple cannot divorce absent a showing of grounds.

Prior to the enactment of the first no-fault divorce statute in 1969, a party seeking a divorce in the United States had to prove their spouse was at fault for the breakdown of the marriage.  In 1969, California Governor Ronald Reagan signed the country’s first no-fault divorce statute into law.  The statute allowed for the citing of “irreconcilable differences” as the basis for sustaining a divorce action, thereby removing the requirement that the plaintiff prove, or even allege, that his or her spouse was at fault for the demise of the marriage.  While the other 48 states followed suit and currently allow a spouse to simply cite “irreconcilable differences” as a basis for filing a divorce action, New York remains the lone fault divorce state.   Despite long running efforts in Albany aimed at reform, New York remains steadfast in its requirement that a plaintiff cite one of six grounds enumerated in the state’s Domestic Relations Law at the commencement of any divorce action.

For over 40 years, the debate over the reform of New York’s divorce law has raged with both sides making strong arguments for their positions.  Those who are opposed to changing the system contend that adopting no-fault divorce in New York would encourages couples to walk away from marriage thereby increasing the already burgeoning divorce rate.  In a recent report, the matrimonial commission established by the Chief Judge of New York State, concluded that fault allegations and fault trials add significantly to the cost, delay and trauma of divorce litigation and are used by some litigants to achieve a tactical advantage in divorce litigation.   Proponents contend that no-fault divorce reduces the complexity of divorce proceedings, saving time and money and encouraging less confrontational and contentious divorces.  While strong lobbies exist for both positions, New York has yet to jump on the no fault bandwagon.

In New York, there are only six grounds that a person seeking a divorce can raise as a basis for sustaining a divorce action:

  • Cruel and inhuman treatment of the plaintiff by the defendant
  • Abandonment of the plaintiff by the defendant, either actual or constructive, for a period of one or more years
  • Confinement of the defendant in prison for a period of three or more consecutive years
  • The commission of adultery by the defendant
  • Living apart pursuant to a decree or judgment of separation for a period of one or more years
  • Living apart pursuant to a written and executed separation agreement for a period of one or more years.

The final two grounds for divorce are not fault based and allow for the granting of a divorce based upon the parties living separate and apart for a period of one year prior to the commencement of a divorce action, whether by written agreement, or a judgment of separation by the Court.  These two grounds are outside the scope of this article and will not be dealt with herein.  Nonetheless, these two grounds are useful tools where a couple wishes to divorce but neither party has the basis for alleging fault against the other.

Cruel and inhuman treatment of the plaintiff by the defendant requires a showing of a course of conduct by the defendant that endangers the physical and/or mental well being of the plaintiff to the point that it renders it unsafe for the plaintiff to continue living with the defendant.  The law requires that the defendant’s actions be designed to inflict physical or emotional suffering upon the plaintiff.  An isolated act of physical violence alone is insufficient to establish cruel and inhuman treatment.  However, an isolated act of violence coupled with other cruel treatment, such as mental cruelty, will give rise to an action for divorce.

Abandonment, the second ground for divorce cited in the Domestic Relations Law, has several different forms.  The plaintiff must prove either “actual” abandonment or “constructive” abandonment by the defendant for a period of more than one year.  Actual abandonment requires a showing that the defendant unjustifiably, voluntarily and without the consent of his or her spouse, abandoned the parties’ home for a period of more than one year, with the intent not to return.  Constructive abandonment refers to the refusal of the defendant to engage in sexual relations with the plaintiff for a period of more than one year.  The constructive abandonment must be unjustified and willful and must have continued, uninterrupted, despite the plaintiff’s repeated requests to resume marital relations.  The physical inability of the defendant to engage in sexual relations with the plaintiff will render constructive abandonment unavailable to the plaintiff as a ground for divorce.  This is a very commonly cited ground for divorce in New York another form of abandonment is where one spouse refuses to allow the other into the home,

The third ground for divorce in New York is the confinement of the defendant in prison for a period of three years consecutive years.  The confinement to prison must be continuous and actual.  A confinement to prison for an aggregate three years, though not continual, is insufficient to sustain an action for divorce.  The legality of the conviction is not at issue.  Thus, where the defendant is confined to prison for a period of three years and his conviction is later overturned, a divorce granted on this ground will remain valid.

Adultery, once the only valid ground for divorce in New York, is extremely difficult, and often costly, to prove.  Adultery may be established by the confession of adultery as testified to by the adulterer or the testimony of third persons to whom the adulterer has confessed.  A divorce will not, however, be granted on the basis of a third party testimony alone and corroborating evidence will be required.  Adultery may be established by the testimony of an eyewitness, provided the eyewitness testimony is found credible by the Court or the jury, as the case may be.  Finally, adultery can be proven by circumstantial evidence by establishing opportunity, inclination and intent on the part of the defendant.  All three elements must be proven and the absence of one element will be sufficient to deny a divorce on the grounds of adultery.

While New York remains a fault based state, New York judges are deprived of any legal basis for utilizing fault as a factor in determining the financial aspects of the case.  Thus, despite the fact that New York requires fault to grant a divorce, the issue of fault does not affect the courts adjudication of financial issues.  In the famous case, O’Brien v. O’Brien, the New York Court of Appeals held that marital fault is not relevant to the financial issues decided in divorce except in extreme and shocking situations. Therefore, unless grounds are being contested, the financial issues are frequently unaffected by allegations of marital misconduct.

New York attorneys, in an attempt to circumvent the strict guidelines established by the Domestic Relations Law and the ensuing case law, have been creative in devising grounds for divorce which purport to fall within the grounds delineated in the statute.  One such novel approach, referred to by the Court as “social abandonment”, was recently shot down by the New York Appellate Division, Second Department in Davis v. Davis.  The wife, Novel Davis, alleged that her husband of 41 years had socially abandoned her by refusing to celebrate holidays and birthdays with her, refusing to eat meals with her, refusing to accompany her to social and family functions and otherwise, ignoring her.  While the Husband contested many of these allegations, his response was simply “so what” as he claimed that “social abandonment” was not a recognized form of abandonment and not sufficient to justify a divorce under New York law.   The issue in the Davis case was simple.  Does “abandonment” include “social abandonment” for purposes of justifying a divorce?  The Court said “No”, holding that the wife’s allegation of “social abandonment” did not give rise to a recognized legal theory for divorce.  The divorce was not granted and the two remained legally bound to one another.

For the time being, New York remains the only state in which a divorce will not be granted on the grounds of “irreconcilable differences”.  While we valiantly argued that our impeccably dressed and well coiffed client established grounds for divorce based on both cruel and inhuman treatment and adultery, a finding of grounds in a divorce trial is never guaranteed.  Our client awaits a decision from the Court concerning her fate, as does her husband.  Only in New York!


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