Ridiculous New York Divorce Law Promotes Dishonesty

February 4, 2010

On December 24, 2009, Judge Matthew F. Cooper, sitting in th Supreme Court of New York County, rendered a decision on the case of Davis v. Davis, 89 N.Y.S.2d 611, 2009 WL 3863026, 2009 NY Slip Op 08579. Mr. Davis brought an action for a non-contested divorce, claiming his wife constructively abandoned him. This means she had no sex with him for a period of one year. This is the most widely used ground for divorce in the State of New York. The reason this ground is widely used is that New York does not have a true no-fault ground for divorce. It is only state in the United States that still maintains an archaic fault based divorce system.

Constructive Abandonment – No Sex for a Year:

Mr. Davis alleged in his complaint that he had not had sex with his wife for over one year. He submitted an affidavit swearing to the validity of this information.

Unbeknownst to Mr. Davis, Mrs. Davis was pregnant with Mr. Davis’ child. Mr. Davis was successful in obtaining the divorce.

Mrs. Davis had a baby boy named Ethan. Mr. Davis, thereafter, moved for genetic marker testing to prove that he was the father of the child. He wanted a declaration of paternity and the divorce judgment to be modified to indicate he was Ethan’s father.

Mrs. Davis opposed the application by Mr. Davis. In her opposing papers, she indicates that in Mr. Davis’ divorce papers, it contained a signed sworn to affidavit that he hadn’t had sex with her for a period of one year. It, therefore, would be impossible for him to be the father of Ethan. Mrs. Davis also alleged that if Mr. Davis is recanting his sworn statement, he should be prosecuted under the NY Penal Law, §210.10 for perjury.

The Appellate Division, Second Department, in its decision on the appeal, indicated that this was the wrong venue to allege criminal conduct. The court further stated that “the sad truth is that New York’s insistence on fault based divorce ends up promoting a disregard for the truth by fostering and encouraging the embellishment of a spouse’s wrong doing as to grounds …”

The court found that there should a presumption of legitimacy of the child being a child of the marriage because it was in the child’s best interests. The court further stated that it is presumed that Mr. Davis was Ethan’s father by virtue of the fact that he had been married to Ethan’s mother when the child was born. The court stated it was in the child’s best interests that his father’s name appear on his birth certificate and that the father should be able to establish a father-son relationship.

If New York had a true no-fault divorce law with a ground such as “irreconcilable differences” or “incompatibility,” individuals would not be motivated to submit false affidavits in divorce lawsuits for the sole purpose of ending their marriage. Although, New York State in many respects is a very forward thinking state, this is not true when it comes to New York’s divorce laws. The court stated that the “view of marriage is more reflective of the time of the Empire of Queen Victoria than it is of the second decade of the 21st Century”. The failure of New York’s legal system to adopt a divorce law that reflects 21st Century sensibilities willl continue to impugn the integrity of the legal system in the State of New York.

The Law Office of Elliot S. Schlissel has been providing legal services to individuals with marital problems for more than 30 years. Should you have an issue involving your marriage, feel free to call us at 1-800-344-6431 or email us anytime.

Picture courtesy of clemmentlaw.

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11 Responses to “Ridiculous New York Divorce Law Promotes Dishonesty”


  1. Hi Elliott
    I found you on Googleblogs. I read with interest what you said and I don’t know if I agree with you.

    Hme…I don’t know if this case is necessarily the best case to illustrate the draconian and arcane divorce laws and the consequences of “fault” based divorces in New York. True, many false affidavits are filed with the courts due to the “fault” based divorce laws. And that isn’t great. But I think this case is an anomaly. Most folks who use constructive abandonment as the basis for divorce don’t turn around and find themselves “parents” of children born in that one year window. I don’t think the state of New York should base its decision to change the divorce laws on this case. It is an exceptional case; it is not the norm. I also don’t think that New York should change to “no fault.” Actually, states like California, Oklahoma and Arizona – which are no fault – have been tinkering with the idea of introducing “fault” based divorces once again. And why? No fault marginalizes the marital contract to the detriment of women and children. It does more harm than good to families and to society. It costs tax payers over $1 billion per year to pay for social services that go to assisting women and children from broken homes and marriages. It is not divorce that needs to be easier to obtain. It is marriage that needs to be harder to enter into. I believe there is a bill pending in Oklahoma right now that would make pre-marital counseling mandatory in Oklahoma. And it also encourages “covenant” marriages. Parties covenant to seek divorce only after exhausting all possible channels of saving the marriage, and only if there is cruelty and adultery or some other “fault.”

    It is good for society to have stable family structures. Marriage is good for children. It reduces the high school drop out rates, reduces delinquency in young kids, increases literacy rates in children, and basically fosters better adjusted kids. No fault laws that so easily allow parents to destroy the familial entity is potentially very bad for kids and it is a burden on tax payers.

    I don’t think New York got it wrong. It is the only state that requires parties to prove grounds and New York should stand its ground with this. Other states are backtracking one by one. They see the error of their ways. California, the quintessential “irreconcilable differences” jurisdiction has one of the highest divorce rates in the country – and they are not proud of it.

    I wrote here about New York’s divorce laws: http://www.divorcesaloon.com/should-there-be-divorce-reforms-if-so-what

    Check it out.


  2. Fault-based divorces should be the law in all 50 states. This way if one spouse wants 50% of all assets + have say on the welfare of any children/pets, they would have to prove w/o a reason of a doubt that it was their spouse that destroyed the marriage. It wouldn’t necessarily mean that criminal charges would be pursued (if it’s not a criminal act to mentally torture a spouse by sleeping around or not being there emotionally, physically, and mentally).

  3. garland king Says:

    why does the state need to get involved in marriages at all? and what about group marriages? if one person wants out why should they have to go to court and pay the fees to do so through a fault divorce?why dont we stop paying ten politicians six figure salaries to do one job that isnt even necessary? then we would have enough money for all the welfare and whatnot that people might need. just saying…..

  4. John Fodor Says:

    This case is messed up. The court with all the granduer messes up on a verdict which it thought to be true.

    This actually leaves me wondering how messed up other divorce stories are.


  5. Elliot,

    I am a matrimonial attorney from Albany and I could not agree more with your take on this issue. New York laws force people to admit to constructive abandonment. How many men truly refuse sex for an entire year? This just doesn’t happen all that often. In any event, I recently wrote an article about grounds and the pending legislature which will add irreconcilable differences see http://newyorkdivorceblog.com/


  6. Yeah, i agree to you. it should not be working that way. It will surely add misery to the divorcing couple.

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  8. Robert Duncan Says:

    Im wanting to divorce my wife, an we haven’t been together for over a year. She has files for alimony in family court an it says this is an indefinite period. When I file for divorce will this be set aside and a new order put in place for a specific time frame? All I want is the marriage to be over. What can I do?

  9. Marian Says:

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  10. When a Judge loses his objectivity, then the truism applies:

    Everything is religious, everything is political.

    Justice Matthew F. Cooper: Sending me this about “The Fucking Jews”
    Mr. Santomauro: No, actually, it was the opposite of that. It was “Fuck the Arabs” in the essay.
    Sandra Schpoont (Attorney for my 11 year old son): Oh, that’s better.
    Steven Mandel (Attorney for my ex-wife): Oh, that’s better.
    Justice Matthew F. Cooper: Oh, that’s better.

    Letter from The Mandel Law Firm (Steven J. Mandel) 12-9-13
    http://tinyurl.com/ozkcek8

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    Depp, the best dessert you ever ate, and your husband doing all laundry and cooking for an entire month.

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