Divorce and “No Fault”

Since last year, New York, like Florida, has become a “no fault” divorce state.  Generally, this means that spouses don’t have to allege wrongdoing to have their marriage dissolved.  A petitioner simply has to allege that the marriage is broken beyond repair, and maybe give a few facts (such as a statement that the parties no longer are in love). But, according to attorney Doug Kepanis, at least one New York judge requires more:

In the case of Strack v. Strack, a wife sought to divorce her husband based on the New York “no fault” divorce statute. She alleged, in accordance with the statute, that “the relationship between husband and wife has broken down such that it is irretrievable and has been for a period of at least six months.” This is basically a paraphrase of the actual law.

However, Judge Robert J. Muller of Essex County pondered the following question: “Whether the [wife’s] unilateral statement under oath is irrefutable…or [is] defendant to be afforded the same…due process as is available for any other cause of action in our jurisprudence.” His ultimate answer…drum roll please…was that the “no fault” statute was “…not a panacea for those hoping to avoid a trial. Rather, it is simply a new cause of action subject to the same rules of practice governing the subdivisions which have preceded it.”

It is settled law in Florida that a party may be granted a divorce simply on the basis that the marriage is irretrievably broken.  If one party denies that the marriage is irretrievably broken, the judge does have the option of ordering the couples to counseling and pause the case for three months, giving the parties an opportunity to reconcile.  However, most judges will not order counseling if one of the parties is firmly opposed to the idea because “[i]f one marital partner has made the considered decision that the relationship should be terminated, perhaps it may be properly said that the marital relationship has broken down.”  Riley v. Riley, 271 So. 2d 181 (Fla. 1st DCA 1972).

If you are facing a divorce and you wish to speak with a Florida divorce attorney, you may schedule a consultation with The Law Firm of Adam B. Cordover, P.A., by calling us at (813) 443-0615 or filling out our contact form.