New York Divorce Report - New York's Divorce and Family Law Blog

After the first no fault divorce trial in New York, a Long Island court found that the parties’ marriage had irretrievably broken down and the wife was granted a divorce. In July, the same Supreme Court judge ruled that the mere allegation in the complaint that the parties’ marriage had irretrievably broken down did not resolve the “grounds” issue.

New York’s no fault divorce law provides that a party may be granted a judgment of divorce if “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."

As I previously reported, two other New York courts (here and here) ruled that that a spouse is not entitled to a trial to challenge the other's allegation that the marriage has irretrievably broken down. The ground is established by simply alleging in a signed pleading that the marriage has irretrievably broken down.

In Sorrentino v. Sorrentino, the Court noted that the husband alleged that the Wife was “was extremely frail, was not of her "right mind" and was under the unnatural sway of at least two of her four children.” While the judge opined that he had to consider these affirmative defenses, he concluded that they were without merit and the Wife was entitled to a divorce.

While I think many judges will simply take the position that New York’s no fault divorce law does not require a trial to prove that the marriage has irretrievably broken down (the mere allegation will conclusively prove the allegation), there will be other judges who believe that there may be defenses to the claim and, as a result, will require a trial. Until the Appellate Division rules to the contrary, there will not be consistency; one judge may allow party to defend against a no fault divorce and another may not. This case may not be the last no fault divorce trial.

Divorce Mediation can be an effective alternative to litigating a divorce in court.  Rather than being adversaries in a courtroom, mediation allows you and your spouse to be engaged decision-making partners in resolving your divorce.   Divorce mediation allows you and your spouse, with the assistance of a neutral mediator, to structure a settlement that resolves the divorce in a way that is important to you. 

The mediators do not represent or counsel either spouse. Instead, the mediator’s role is that of an unbiased, neutral third party who facilitates an agreement that addresses the needs, wants and desires of both parties.

Mediation is particularly effective when the parties have children and both parents share the common goal of doing what is best for the children. 

Since everything discussed as part of the mediation is confidential, the parties are free to exchange idea and discuss settlement scenarios that they may not otherwise be open to in a more adversarial or litigated setting.   As a result, it may only take a few sessions to identify and resolve all of the issues relating to the divorce, saving the parties the emotional and economic expense associated with drawn out court battles.

A good and effective mediator will keep the lines of communication open, encourage the parties to think out of the box and brainstorm about ideas that will lead to a lasting settlement.   A successful mediation will result in an agreement, drafted by the mediator, memorializing the terms of agreement.  Most importantly, the parties will be satisfied that even if they did not get everything they wanted, the settlement is fair and, at a minimum, their voice was heard.