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.
CONTACT US
 
212.382.1600

Name
Email*
Phone
Type the code shown (code is not case sensitive)*
Comments
*We will never share your email address with anyone, ever.
 
Entries RSS
SEARCH THIS BLOG
 

   Search
 
Enter Your Email
 

 
RECENT POSTS
 
 
CATEGORIES
 
 
ARCHIVES
 
 
LEGAL RESOURCES AND INFORMATION
 
 
CONTACT US
BlogCatalog Blog Directory

Divorce Agreement January 25, 2013

WHAT CONSTITUTES A “RESOLUTION” OF ECONOMIC ISSUES UNDER THE NEW YORK NO FAULT DIVORCE STATUTE?


Posted by Marc Rapaport

New York's no fault divorce statute, D.R.L. Section 170(7), provides that either the husband or wife may obtain a judgment dissolving the marriage by alleging that the marital relationship "has broken down irretrievably for a period of six months."  No trial regarding the existence of an irretrievable breakdown is required. A sworn statement by the plaintiff, in the form of a verified complaint, is the sole evidentiary requirement to establish the existence of a marital breakdown. Courts will not permit the other spouse (Defendant) to challenge the existence of an irretrievable breakdown.  

Above and beyond the sworn statement of an irretrievable breakdown, there is a further prerequisite for the issuance of a no-fault divorce judgment.  The statute requires that "economic issues" either be resolved by the parties or determined by the court prior to the entry of a divorce judgment. At first glance, the statute's mandate that economic issues be resolved prior to the issuance of a no-fault divorce judgment would appear to be clear. However, in practice, the issue of what constitutes a resolution of economic issues has been the subject of litigation.   

In a nutshell, the dilemma is that many marital agreements don't actually resolve the parties' disagreements, and simply serve as catalysts for further disputes. In countless cases, before the ink has even dried on an agreement, one or both of the spouses launches a new round of accusations. Sometimes, there is disagreement regarding the interpretation of the parties' obligations under the agreement. In other instances, a spouse will allege that the other party has breached his or her obligations. At bottom, in a surprisingly large number of matrimonial matters, the parties' execution of a settlement agreement does not actually bring peace.  

The language of New York's no-fault statute does not give much guidance as to whether the parties have "resolved" their financial issues even though they continue to dispute financial issues after signing a separation agreement.     Recently, a trial court in Nassau County issued a decision that squarely addresses this issue. In the Burger v. Burger, 36 Misc.3d 752, 951 N.Y.S.2d 332 (Nassau Cty. 2012) the Court squarely addressed this issue, and concluded that the execution of the agreement itself satisfies the requirement of the no fault statute. Post-agreement allegations of breach, even if true, do not impair the court from issuing a no fault divorce judgment.

I strongly agree with the Nassau County Court's decision. The linchpin of a no-fault divorce is the existence of an agreement resolving the ancillary issues set forth in the statute. The parties' Separation Agreement satisfies that burden. The existence of post-agreement disputes does not defeat the entitlement to divorce based upon irretrievable breakdown.

The existence of post-agreement disputes is sometimes attributable to sloppy or rushed work on the part of New York divorce lawyers. One way to avoid such disputes is to exercise tremendous caution with regard to the language used in a separation agreement.

Share
Labels: New York Divorce Lawyer, No Fault Divorce, New York No Fault, Separation Agreement
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.
©2004-2011, Rapaport Law Firm, PLLC. All rights reserved.