Did New York’s New No-Fault Divorce Law Intend To Make Divorces Effortless?

As it usually happens shortly after a new law goes into effect, courts find themselves treading in unfamiliar territory in interpreting the law.   In an effort to ascertain legislative intent, judges utilize various statutory interpretation techniques, such as looking to legislative history, to the meaning of a word in the definition section of the statute, or to other provisions in the act.  Such was the situation in the New York Supreme Court, Essex County in the recent divorce action based on the newly enacted no fault grounds in Strack v. Strack.

“Effective relative to actions commenced on or after October 12, 2010, Domestic Relations Law § 170 (7) 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.” This additional ground for divorce has given parties the option of securing a divorce without alleging fault.”

The Court was dealing with two main issues: the first one was whether the plaintiff’s unilateral statement under oath indicating that the relationship has been broken down irretrievably for a period of at least six months is irrefutable or whether defendant is entitled to exercise his/her right to due process under the Fourteenth Amendment.  After looking to the legislative history of the new provision, the Court noted that, with its enactment, the lawmakers were hoping to “lessen litigation which they described, accurately in this Court’s view, as time consuming and expensive for all, including the judiciary.”  The Court, however, was unwilling to read the statute so broadly as to find that if one spouse makes a statement under oath, in an effort to avoid litigation, the other spouse is prevented from contesting the claim.

In fact, Judge Robert J. Muller noted that the new provision is “not a panacea for those hoping to avoid a trial. Specifically, Domestic Relations Law § 173 provides that “[i]n an action for divorce there is a right to trial by jury of the issues of the grounds for granting the divorce” and, here, the Legislature failed to include anything in Domestic Relations Law § 170 (7) to suggest that the grounds contained therein are exempt from this right to trial.  Had it intended to abolish the right to trial for the grounds contained within Domestic Relations Law § 170 (7), it would have explicitly done so.”

The judge’s conclusion invites the following question – what was the point of this new enactment?  Prior to this law, a couple in New York could divorce only if fault could be assigned to one of the spouses first or if the couple has been separated pursuant to an agreement for a period of one or more years.  Therefore, was not the aim of the new law to avoid the cost, delay, trauma, and embarrassment that usually accompany the litigation?

However, a closer look at the DRL §170 suggests that the judge’s conclusion is quite reasonable. The first paragraph of the statute 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 (emphasis added)”; and the new provision, subsection (7), is listed as one the “grounds”.   Although it seems counterintuitive, the plain meaning of the statute does suggest that “no fault” is intended to serve as yet another ground for divorce.  Therefore, Judge Muller was completely justified in applying DRL § 173 which provides that “[i]n an action for divorce there is a right to trial by jury of the issues of the grounds for granting the divorce”.

The second issue had to do with interpretation of the phrase “broken down such that it is irretrievable.”  Judge Muller found that this phrase was not defined in the statute, and thus “the determination of whether a breakdown of a marriage is irretrievable is a question to be determined by the finder of fact.”  Although, he did hold that “whether a marriage is so broken that it is irretrievable need not necessarily be so viewed by both parties” and that “the fact finder may conclude that a marriage is broken down irretrievably even though one of the parties continues to believe that the breakdown is not irretrievable and/or that there is still some possibility of reconciliation.”  At the end, the Court ordered an immediate trial by jury to decide whether the relationship between parties has broken down irretrievably for a period of at least six months.

Thus, despite all the legislature’s hopes of minimizing litigation, poor Mrs. Strack will have to endure the embarrassment of having to parade her personal life in front of six or twelve strangers, hoping for them to conclude that her marriage to Mr. Strack has reached such a state that there is no hope for reconciliation.

Is this what the legislature really intended? Or was the legislature in such a hurry to pass the enactment that the unintended consequences of the poor wording were not taken into consideration?

Prior to the enactment of the new law, in Molinari v. Molinari, Judge Robert A. Ross of the New York Supreme Court, Nassau County, reflected his frustration with absence of no-fault as a ground for divorce by noting that efficacious resolution of economic issues and custody determinations were back-seated and delayed by fault (grounds) trial; that parties without resources to afford such litigation were often at a tactical disadvantage, and that some parties resorted to embellishment of a spouse’s wrongdoings as to grounds.

Now that New York finally has no-fault as a ground for divorce, I wonder whether Judge Ross, after reading the outcome of Strack v. Strack, would say that all the criticism he levied at the state of divorces in the absence of no-fault as a ground no longer applies.

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