New York Divorce Forms, Law, Informaton: Marc Rapaport New York Matrimonial Update

The Trend Toward Stricter Interpretation of the Cruel Treatment Ground for Divorce in New York

As I have frequently discussed on this website in the past, it is ironic (and unfortunate) that as the rest of the country has rapidly moved toward a no fault divorce regime, New York's courts continue to squander valuable resources by requiring litigants and their attorneys to contemplate the minutiae of what constitutes sufficiently egregious marital misconduct under our antiquated fault-based divorce statute. Many years after most states enacted laws that have rendered ?fault? increasingly irrelevant to divorce, New York's courts have subjected claims of cruelty to surprisingly strict scrutiny.

An action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on any of the following grounds:

The cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant.

This Statute requires a party to establish both the specific acts of cruelty perpetrated by the defendant, as well as the effects of that treatment. By forgetting or failing to establish the effects of the defendant's actions, plaintiffs have failed to satisfy the statute's requirement that the conduct endangered their well being so severely as to make continued cohabitation "unsafe or improper". In Hearst v. Hearst, 40 A.D.3d (1st Dept. 2007), the Appellate Division upheld the lower court's decision that denied the plaintiff-husband's claim for divorce, observing that the husband had failed to demonstrate that the deterioration of his health was actually caused by the defendant's conduct.

In contested divorce actions, it is essential for litigants to provide detailed testimony about both the defendant's conduct, as well as the deleterious effects of that conduct. Until New York's legislature acts to bring our antiquated divorce laws into the 21st century, divorce litigants and their attorneys are have no alternative than to focus on minutiae surrounding alleged misconduct.