As I noted in this post, New York now has “no fault” divorce permitting the court to award a divorce based on one spouse’s sworn statement that the marriage has been “irretrievably broken” for at least the prior six (6) months prior to the commencement of the divorce. So what exactly does it mean for a marriage to be “irretrievably broken” and what if one spouse does not agree to this ground? In other words, can a spouse contest the fact that the marriage was irretrievably broken to prevent a court from granting a divorce? Hmmm…. good question!
New York courts have yet to come to a consensus as to whether a defendant-spouse can challenge the no-fault ground for divorce and refute the claim that the marriage is “irretrievably broken”. In 2011, an upstate New York court, in Strack v. Strack, held that a defendant-spouse can refute that a marriage is “irretrievably broken.” However, a month later a Long Island court, in A.C. v. D.R., held just the opposite—that the sworn statement of one spouse that the marriage is “irretrievably broken” is sufficient grounds for a divorce.
New York’s first trial on this issue occurred on Long Island, New York early this year in the case of Sorrentino v. Sorrentino. The case concerned the Sorrentios’ 56-year marriage, which the wife claimed was “irretrievably broken”. The husband contested the divorce, refuting the claim that the marriage was broken. In this case, the judge ruled that although the husband has a right to defend against the divorce (as did the judge in the Strack case), the defendant did not sufficiently refute that the marriage was “irretrievably broken.” Therefore, the judge granted the divorce.
Although no-fault creates a new option for divorce in New York state, the courts are still grappling with whether or not the defendant-spouse can refute that the marriage is “irretrievably broken.” I suggest seeking counsel before contesting a no-fault divorce arguing that the marriage has not been “irretrievably broken” for at least six months prior to the commencement of the divorce.
I receive strange looks from time-to-time when I tell folks that I am a food & agriculture attorney who also does a lot of family/matrimonial law. “Interesting combination…” Why yes it is. The way I look at it is this: divorce (unfortunately) affects a lot of people in a lot of different walks of life, including those who work in the food & fiber industry and folks who live here in my own backyard. Divorces can be quite harmful for the family farm or agri-business (which is why I am a proponent of prenuptial agreements for prudent succession planning). It is, however, a reality that many people have to deal with. I’m not an advocate of divorce nor do I ever want my readers to be believe that a divorce is a quick and easy process. Even “no fault” divorces can be long and complex depending on the contested issues. I wish all of my readers a long and happy marriage. But if the day comes when you are better on your own, I urge my readers to seek competent counsel licensed in your jurisdiction.
"This blog is for informational purposes only and is not intended to create an attorney-client relationship. It is recommended that you speak to an attorney licensed in your jurisdiction before relying on the information in this blog."