Family Law Review
Vol. 30, No. 2 June 1998

Fault Divorce Grounds in New York: Is it Time for a Change?

Elliot D. Samuelson,* Editor

New York continues to be a fault state. Divorces can be predicated only upon causes of action sounding in cruel and inhuman treatment, adultery, abandonment for a year or more and other enumerated grounds contained in Domestic Relations Law section 170. In this regard, New York remains in the minority of states that require fault to be proven before the parties' marital assets can be distributed.

There have been many legal scholars and, indeed, members of the organized bar and an ever‑growing num­ber of disgruntled litigants who have questioned whether the continued need to prove fault in a divorce action is beneficial to the family or whether it simply causes an exacerbation of the parties' irreconcilable differences and engenders needless litigation, with its attendant addition‑al costs. It has also been argued that the requirement to prove fault and hang out the family's dirty linen has added to the negative image of the matrimonial bench and bar.

Unless a party can establish adultery (which outcome can reasonably be anticipated, based upon the evidence obtained prior to trial), there is grave difficulty for a lawyer representing a client who is in a marriage of long duration to predict the outcome after trial when the factual basis for the divorce articulated in the complaint is allegations of cruel and inhuman treatment. To many seasoned prac­titioners, whether the case will be won or lost must rest upon the judge who sits in the marital part. Is he or she liberal or conservative? Does the judge have a religious background that might make it more difficult to grant a divorce? Has the judge, in the past, granted divorces in long‑term marriages, based upon marital cruelty?

This difficulty in prognosticating the outcome of a cru­elty trial, faced by litigants, attorneys and their clients, was heightened with the determination by the Court of Appeals in the Hessen, 33 NY2d 406, and Brady, 64 NY2d 339, cases which essentially required a high degree of proof transcending mere bickering and quarrel­ing in order for a couple who has been in a marriage of long duration to obtain a divorce. Put another way, in New York, divorce is not merely for the asking, although today some feel that it should be. Our sister states of Connecticut and New Jersey permit divorce based upon physical separation without the necessity of articulating fault grounds in order to obtain relief. Yet, ten years after the decisions in Brady and Hessen by the Court of Appeals, some courts persist in requiring heinous allega­tions and proof of mental or physical cruelty in order for the allegations in the complaint to be actionable in sea­soned marriages.

With this dilemma in mind, it was interesting to note an Appellate Division, First Department decision in M.M. v. E .M.M., 669 NYS2d 543 (1998), decided earlier this year, that has, so far, received little attention. There, the lower court dismissed a complaint seeking a divorce upon cruelty on a motion to strike for failure to state a cause of action. On appeal, the Appellate Division, First Department unanimously reversed, holding that the trial court should have accepted the facts alleged in the com­plaint to be true and then to accord them every reason‑able inference of validity, In doing so the Appellate Division observed that it is proper for the court to consid­er explanatory affidavits submitted by the parties on the motion to dismiss. To fully understand the impact of this decision, and perhaps a trend to now liberally interpret Brady and Hessen in marriages of long duration, the facts should be explored.

The parties were married for 23 years and separated in 1992. The husband failed to commence an action for divorce for at least three years following the parties' separation. He then served a complaint seeking a divorce on the grounds of cruel and inhuman treatment pursuant to Domestic Relations Law section 170(1). Essentially, his complaint alleged eight incidents of cruelty, including that his wife frequently became intoxicated, regularly criti­cized him and his family as well as his career, often caus­ing the husband to become embarrassed before friends and colleagues. There was but one allegation of a physi­cal assault. The wife answered the complaint by denying the allegations and counterclaimed for a divorce on the grounds of cruelty and abandonment. She then moved to dismiss the husband's complaint upon the ground that it failed to set forth a cause of action as required by CPLR 3211(a)(7), arguing that the Brady decision required dis­missal. The supreme court, in granting the wife's motion to dismiss, noted that the parties had separated in 1992 and that it took the husband nearly three years to com­mence the action. In pointing out that the gravamen of the husband's complaint consisted of the wife's alleged drunkenness and resulting embarrassment caused to him, the court concluded that "taken as a whole and given the duration of the marriage, it is the opinion of the court that the plaintiff has not established grounds under DRL section 170(1)."

To its credit, the Appellate Division thought otherwise. Although it agreed that the Brady case still required that "a plaintiff seeking a divorce under the cruel and inhuman treatment subdivision must show serious mis­conduct, and not mere incompatibility," it nevertheless reversed and held that the Brady requirements were met by the allegations in the complaint. It is interesting to observe, too, that the alleged misconduct of the wife occurred over a two‑year period. Her misdeeds consisted of becoming intoxicated on a regular basis and continually berating, ridiculing and verbally abusing her husband. There was one allegation of violence and that was that the wife struck the husband with clenched fists, forcing him to flee her presence and lock himself in the bathroom to terminate her assault. The Appellate Division concluded that these factors, considered together, were a sufficient show­ing of cruelty to sustain the complaint and explained that such conduct constituted more than mere incompatibility or occasional marital discord, which would have precluded relief in a marriage of long duration. The court looked to the husband's supporting affidavit in which he described his wife's conduct as a constant barrage of nightly drunken and vicious attacks, albeit verbal, causing him to leave the marital home in 1992 and seek psychotherapy. Then, still mindful of the Brady determination, the court com­mented that the conduct as alleged in the complaint would prevent continued cohabitation of the parties, and that if the husband remained in the marital residence, it would adversely affect his mental health.

It is clear, at least to this writer, that if this case was determined by the Appellate Division some years ago, the result might have been different. Moreover, even the facts presented in this very case might be resolved differently by another appellate court. Because of these uneven results, it is apparent that the time has come to amend the law and adopt a liberal approach: one which will preclude collusive divorces and eliminate perjured testimony of spouses. To do otherwise will only further diminish the image of the matrimonial court and belittle the divorce laws in the state of New York.

Is there a valid reason to continue to require fault in order to obtain a divorce? We think not. To continue without change will only create greater turmoil and hardship to the litigants and will do nothing to resolve the pain and conflict of divorce. Rather, doing nothing encourages liti­gation to linger and escalate. In failing to address the real issues of divorce‑-the children and the financial aspects, which include support and a division of property-‑the sys­tem fails. It fails the litigants, it fails the bar and it places an unnecessary burden on the bench. If parties knew that they could obtain a divorce once they recognized that their marriage was dead, then all concerned could direct their energies toward speedy resolutions of support, equitable distribution and custody and visitation issues. If we are to cut down on the expense and trauma of divorce, we must eliminate fault. It is up to the legislature to act. New York should not be a laggard in domestic relations reform. Our elected officials must be responsive to the needs of their constituency. Once the general public learns of the legis­lature's failures, their dismay will be reflected at the polls and new officials elected who will champion reform.