New York lawyer Daniel Clement reports on the case of Strack v. Strack, in which a Lake George judge ruled that the new divorce law still grants a right to trial by jury on any divorce ground, including six-month "irretrievable breakdown", but also that "the fact finder may conclude that a marriage is broken down irretrievably even though one of the parties continues to believe that the breakdown is not irretrievable."
This was a 48-year marriage where the plaintiff seeking the divorce claimed that "Each year Plaintiff and Defendant live separately throughout most of the winter months. Though they share the residence for several months out of the year, Plaintiff and Defendant have not lived as husband and wife for a period of time greater than six months."
The opinion briefly reviews the legislative history of the new law and concludes that many of its supporters expected that "the allegation, in and of itself, would not be subjected to the rigors of any defense, any motions, the requirement of any testimony and certainly not the scrutiny of any fact finder." In support of this, though, the judge only cites statements about the need to eliminate "the requirement to prove fault", which is quite a different matter and was indeed abolished (in fact, it was abolished as an absolute requirement in the 1970s, when consent-based no-fault divorce was enacted). But regardless of what some supporters may have expected, the judge concludes,
"Domestic Relations Law § 170 (7) is 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. Specifically, Domestic Relations Law § 173 provides that "[i]n an action for divorce there is a right to trial by jury of the issues of the grounds for granting the divorce" and, here, the Legislature failed to include anything in Domestic Relations Law § 170 (7) to suggest that the grounds contained therein are exempt from this right to trial. Had it intended to abolish the right to trial for the grounds contained within Domestic Relations Law § 170 (7), it would have explicitly done so."
Clement is outraged and says the intention of the law was NOT to have judges decide the issue of "irretrievable breakdown", rather, in an interesting window into what the advocates of the no-fault law were thinking, he argues, "it was assumed that the allegation that 'the marriage had irretrievably broken down with no prospect of reconciliation,' would create an irrebuttable presumption that would, in essence, establish the ground for divorce, completely eliminating the need for a grounds trial." ... "New York's no fault divorce law must be amended to provide that mere allegation, made under oath, that a marriage has irretrievably broken down establishes this ground for divorce, thereby eliminating the need to ever try this issue."
Around the country, there are states where it is pretty hard to get a court to seriously consider that a marriage might not be terminal -- even in some cases where the parties are sleeping together -- but I don't know of anywhere where you can't have a court hearing when the facts are in dispute. Clement's proposal would destroy whatever is left of the "irretrievable breakdown" standard and along with it, the six-month pre-divorce waiting period in the new no-fault law.
In a related development, Eugene Volokh has launched a menagerie of discussion on his "Volokh Conspiracy" of "Presumptions Are the [Name-the-Animal]s of the Law", inviting speculation on what kind of animal judges have called presumptions, beginning in 1906 and culminating with a court opinion handed down yesterday in an international paternity case.