Rapaport Law Firm, PLLC
A New York Divorce Attorney's Thoughts on NY Matrimonial and Family Law
Marc Rapaport has 19 years of experience handling New York family law matters. Marc is the founder and principal of Rapaport Law Firm PLLC, a matrimonial law firm in Manhattan's Empire State Building. We hope that this blog provides you with an informative discussion of New York family law. If you are looking for a divorce lawyer in New York City, call for a free telephone consultation: ph (212) 382-1600.
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Irreconcilable Differences January 26, 2012

NO FAULT DIVORCE IN NEW YORK: WHEN IS A MARRIAGE IRRETRIEVABLY BROKEN?


Posted by Marc Rapaport

            Yesterday, the New York Law Journal  reported that the Supreme Court in Suffolk County recently concluded the first grounds trial in New York in which a defendant-spouse challenged a plaintiff's claim that the marital relationship was "irretrievably broken."  The fact that a trial as to the existence of irreconcilable differences occurred at all has, itself, engendered considerable controversy among New York divorce lawyers.  After all, the passage of a no fault basis for divorce by the New York legislature was specifically intended to avoid the type of lengthy and costly court proceedings that previously occurred when a spouse claimed that the party seeking divorce had not established sufficient "fault."  Such proceedings were widely viewed as anachronistic and embarrassing, and it was widely anticipated by divorce attorneys that the passage of no fault divorce would usher in a modern era, in which the sole emphasis by litigants and the courts would be upon financial issues (such as equitable distribution, maintenance, etc.) that arise in connection with the dissolution of a marital relationship. 

             Indeed, some courts have held (correctly, in my opinion) that the sole requirement for establishing the existence "irreconcilable differences" is a declaration, by one spouse in his or her complaint, that there are such differences.   The conclusion that the New York legislature specifically intended to eliminate even the possibility that a defendant-spouse would be able to challenge the existence of irreconcilable differences is, quite simply, inescapable.   In fact, when the legislature announced its enactment of no fault divorce, it explicitly stated in a press release (dated June 15, 2010) that it intended precisely that result, stating, "The requirement under current law to determine who is at fault for causing the divorce has significant financial and emotional costs, and unnecessarily forces couples in deteriorating relationships to rehash the bitter, painful and embarrassing reasons for divorce." The legislature's pronouncements, and the language of the law, could not possibly have been clearer: New York litigants would no longer be required to litigate the underlying reasons for their divorce. 

            It is has been approximately one and a half years since New York became the last state in the United States to enact no fault divorce.  Nonetheless, contested divorce cases continue to be expensive, stressful, and prolonged proceedings.  Because New York's courts have been forced to enact massive budget cuts, the waiting period for trials and decisions has become longer.  Quite simply, the process of divorce is generally slower than it was before the passage of the no fault statute.   Given the clear purpose and language of the no fault statute, and the overwhelming inefficiency and delays afflicting state courts throughout New York, the continued occurrence of grounds trials is, quite simply, incomprehensible.

             The refusal of some courts in New York to adhere to the language and intent of the no fault statute mandates further action on the part of the legislature.  Specifically, the legislature should amend Section 170(7) of the Domestic Relations Law with the addition of language stating that a spouse's declaration, under oath, that a marriage is "irretrievably broken" constitutes sufficient and incontrovertible proof of such irreconcilable differences.  With the addition of that single sentence, grounds trials will finally be relegated to the dustbin of divorce history.


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RAPAPORT LAW FIRM, PLLC.
One Pennsylvania Plaza, Suite 2430, New York, New York 10119
Phone 212.382.1600/Fax 212.382.0920/info@rapaportlaw.com
MARC RAPAPORT IS A NEW YORK DIVORCE ATTORNEY WITH MORE THAN 18 YEARS OF EXPERIENCE. HE IS A CONTRIBUTOR TO NEW YORK MAGAZINE'S "ASK THE EXPERTS" COLUMN, AND HE REGULARLY APPEARS IN THE LOCAL AND NATIONAL MEDIA REGARDING NY DIVORCE AND FAMILY LAW. IF YOU ARE FACING DIVORCE, IT IS ESSENTIAL THAT YOU RETAIN AN EXPERIENCED NY DIVORCE LAWYER. FOR AN APPOINTMENT, CALL THE RAPAPORT LAW FIRM TODAY: (212) 382-1600 or EMAIL MR. RAPAPORT.
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