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.

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You may view the video above to get information about Mr. Schlissel’s matrimonial practice in the Five Boroughs of New York City, Nassau and Suffolk counites. Our office has been representing matrimonial clients in New York clients for over 30 years. You can get additional information from our matrimonial law site  and by contacting our office.

lesbian-same-sex-marriageOur office practices a great deal of matrimonial law, so it is with great interest that we read about a Broome County New York Supreme Court justice who  just granted Lauren Wells-Weiss and Shari Weiss (married in Canada) a divorce.  By doing so, it implicitly also recognized the fact that they were initially married, the first time this has happened in the marriage or divorce context in New York.

The New York Surrogate’s Court has already recognized a same-sex marriage performed in Canada for the purpose of an Administration proceeding, as reported on this site in February.

I am frankly not surprised by the recognition of Canadian same-sex marriages for the purpose of granting a divorce.  That issue is not fundamentally different from the one considered by the Surrogate’s Court. And in the recent case of Lewis v. NYS Dept. of Civil Service, 872 NYS 2d 578 (3d Dept 2009), the Appellate Division held that marriages validly performed in another jurisdiction, unless void as a matter of public policy or specifically excluded by New York’s Domestic Relations law, are recognized as valid by New York State as well.

The Court held that New York’s recognition of validly-performed foreign jurisdiction same-sex marriages do not fall into either exception to New York’s general recognition of out-of-state marriages. It pointed out that NY’s Domestic Relations law does not specifically invalidate foreign same-sex marriages. The court also clarified that  New York has only invalidated a few types of marriages based on public policy, including incestuous or  polygamous marriages, and marriages where one party was under the age of consent.

That being the case, it comes as no surprise that a situation has arisen in which a New York court has had to decide whether it may grant a divorce in the case of a Canadian same-sex marriage, a new application of an emerging pattern of foreign same-sex marriage recognition in New York.

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divorce-decreeMany non-custodial parents think that they can get the child tax exemption that they are entitled to (based on I.R.C. § 152(e)2)) pursuant to their divorce decree by simply attaching the divorce decree to their tax return. People try this use the divorce decree in lieu of IRS form 8332 because they are either hesitant or feel unable to have that form filled out and signed by the custodial parent.

Unfortunately, this does not work. As accountant Louis J. Cercone, Jr. points out, even when a non-custodial parent can take a tax exemption pursuant to a divorce decree,  the Internal Revenue Code only permits him (or her) to do so if the custodial parent fills out Form 8332 or signs a letter with the following information contained in it:

  1. The name of the child to which an exemption is released;
  2. The year for which the exemption is released to the non-custodial parent;
  3. A signature, date of signature, & social security number for the custodial parent; and
  4. the name and social security number of the non-custodial parent to whom the exemption is released.

Without either form 8332 or a letter signed by the custodial parent with the aforementioned elements, a non-custodial parent cannot get the exemption he or she is entitled to according to the divorce decree. The divorce decree, which is not signed by the custodial parent, will not suffice.

For any other legal advice on matrimonial or family law issues, please call our office for information.

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