Thursday, July 20, 2017

IS THERE A DEFENSE TO NO FAULT DIVORCE?



This question arose when an individual consulted me on Avvo. They were advised that their "friend" could not get a no fault divorce because the court stated they have to first attempt counseling before they could establish an irretrievable breakdown.

That would be an interesting defense but would conflict with the purpose of the no fault rule. As noted in LAB v. BM, 2014 NY Slip Op 51069 - NY: Supreme Court 2014:

"Plaintiff's complaint seeks a divorce based on "no-fault" grounds, the irretrievable breakdown in the parties' relationship for at least six months pursuant to DRL § 170(7). Defendant has not cross claimed for divorce on different grounds. Although Referee Ratner's report indicates that the grounds for divorce are not resolved, this Court agrees with the case law which holds that there is no defense to a party seeking a divorce based on irretrievable breakdown in the parties' relationship and "a plaintiff's self-serving declaration about his or her state of mind is all that is required for the dissolution of a marriage on the ground that it is irretrievably broken down." D.R.C. v A.C., 32 Misc 3d 293, 306 [Sup. Ct. Nassau County 2011]; Vahey v Vahey, 35 Misc 3d 691, 694 [Sup. Ct. Nassau County 2012]."


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