New York Divorce Lawyer & Attorney : Clement Law Firm : Family Law Serving Manhattan, Westchester County, Brooklyn, Queens, Bronx, New York City

Over a year ago, New Jersey recognized irreconcilable differences as grounds for divorce. So, what can New York lawmakers, who have been struggling to enact a no-fault grounds for divorce, learn from New Jersey’s experience?

According to the New Jersey Lawyer, “The law stands as a classic case of a proposal lingering for years in the state legislature based on opposition from religious groups and, when finally enacted, is actually heaped with praise.”

In the absence of a no-fault or irreconcilable differences ground for divorce, the parties need allege and prove marital fault. Prior to the enactment of New Jersey’s irreconcilable differences grounds for divorce, extreme cruelty was a common ground for divorce.

“All attorneys interviewed agreed that a detailed filing under extreme cruelty had the potential to create an especially combative and mean-spirited divorce proceeding.” The new no fault law has effectively defused some of the animosity.

“Unlike the extreme-cruelty standard, an irreconcilable-differences filing "starts the litigation off on a positive note; you don't have to start the litigation with smearing the other party," added Paterson lawyer José I. Bastarrika.”

The attorneys and judges interviewed, not surprisingly, acknowledged a drastic reduction in cruelty filings.

Perhaps one day, New Yorkers, after enacting a no-fault divorce law, will like our New Jersey neighbors, will look backward and wonder, what was all the fuss about.

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A husband was justified in abandoning his wife after she admitted having an adulterous relationship. When the wife sought a divorce after her husband left her, her abandonment claim was dismissed.

The New York Legal Update provides the details of the case of Kaplan v. Kaplan:

In that case, during a marital counseling session, the wife admitted to a long term extramarital affair. Thereafter, the husband moved out of the marital residence. More than one year later, the plaintiff-wife commenced the action for divorce, after 17 years of marriage, on the grounds of abandonment and cruel and inhuman treatment. The defendant-husband moved for summary judgment dismissing the action. The Supreme Court granted the husband's motion, and the Second Department affirmed.

The Second Department noted that in order to be granted a divorce on the grounds of abandonment, a plaintiff must demonstrate that the defendant unjustifiably and without the plaintiff's consent abandoned the plaintiff for a period of one or more years (see Domestic Relations Law § 170[2]). Here, The Court found that the husband was justified in leaving the marital residence because of his wife's extramarital affair. Thus, there was no abandonment, and the wife was not entitled to the divorce on this ground.

With respect to cruel and inhuman treatment the Court noted that the marriage was one of long duration, and thus, a high degree of proof was required for termination on the ground of cruel and inhuman treatment. And here the Court found that the plaintiff-wife's allegations of embarrassment and discomfort were insufficient to establish cruel and inhuman treatment

I am going to guess that money was the real issue in this case. What else could motivate the husband to oppose the divorce? Clearly, the marriage was dead - the husband moved from the marital home and the wife was having an affair. Since the Wife failed to prove grounds, the court did not have to address the issue of equitable distribution.

Without no-fault grounds for divorce, the wife is locked in a dead marriage; only the husband has grounds. As a result, the husband can extort economic concessions from the wife in order to secure a divorce.

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A number of the presidential candidates are divorced. Fred Thompson, John McCain and Rudy Guliani are all divorced. Should the reasons for their divorces be fodder for their qualifications as President?

For instance, there has been discussion on the blogosphere about Fred Thompson’s divorce based upon “cruel and inhuman” treatment. Does this mean the Thompson was a wife-beater or a victim of domestic violence?  Not necessarily.

As one commenter pointed out in The Atlantic:

Cruel and inhuman treatment" (or something similar) is a common legal cause of action in the divorce law of many states. In states without no-fault divorce, one needs (or needed) a legal cause of action in order to file for divorce. One of those causes of action is "cruel and inhuman" treatment.

In New York, for instance, where a “No Fault” divorce is not an option, unless the parties are willing to be legally separated for a year, their divorce must be fault based. Cruel and inhuman treatment is one available option for a grounds based divorce.

On the other hand, we will never know if Thompson selected his grounds for divorce because it was a means to an end, a quick divorce, or because there were actually incidents of domestic violence. If an irreconcilable differences grounds for divorce was available, would the Thompson’s have pursued a divorce based on cruel and inhuman treatment?

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