Law Office Of Michael G. O’Neill, The Types of Cases We Handle
Divorce, Perjury and Paternity
New York is the only State in the Union that does not have a no fault divorce law. Time was when diamonds really were forever, and getting a divorce was harder than riding a bicycle in a snowstorm. Nowadays, the folks at DeBeers are still happy to sell you the diamond, but you can get a divorce just for the asking, except in New York. In New York, you have to prove that somebody is at fault. In this context, fault does not mean he doesn't make you happy anymore, it has to be on a list of about a half dozen grounds, like adultery or abandonment.

In New York, most folks who want a divorce without getting nasty (and making divorce lawyers rich) choose abandonment as their grounds. Abandonment means that one spouse has left the marital home for no good reason and refuses to return and be a spouse to the other for at least twelve months. This is all well and good when the parties really have split up for over twelve months, but as we know, rents are high and what if they haven't actually done so, or have split up only two months before. The courts in their wisdom have acknowledged the idea of "constructive" abandonment, two people living in the same household, essentially as roommates and not spouses. What's the difference? Roommates don't have sex. So if one spouse is willing to swear that she has tried to have sex with her spouse and he has refused for the last twelve months, she is entitled to a divorce.

There is no requirement that the declaration be made with a straight face, and there is probably more perjury committed in constructive abandonment divorces than in a full session of congress. An interesting case in point is that of the Mr. and Mrs. Turchin. This couple was married in July, 2006, and a mere fifteen months later Mr. Turchin filed for divorce, swearing that his wife refused to have relations with him beginning in August, 2006. (This brings up that old saw: Q. How do you stop a woman from having sex? A. Marry her.) Mrs. Turchin did not contest the allegation, and in July, 2008, a New York Court granted the divorce.

There was just one little wrinkle. In March, 2008, Mrs. Turchin had given birth to a little baby boy. Mr. Turchin, who claimed to find this out only after the divorce was final, sought (to his credit) to prove his paternity. "Not so fast," said the ex-wife, "you swore we didn't have sex since August, 2006, so it can't be your baby." Ordinarily, the response "I lied" is not accepted by the Courts when you got some benefit from the lie, in this case the benefit being the divorce. But the Court had enough common sense to cut through the legal fictions, essentially giving judicial recognition to the concept of a "little white lie."

This story leaves me with two questions. The first is what is wrong with New York that it doesn't have a no fault divorce? Who benefits from the charade such as that the Turchins had to go through? To answer this question, you have to understand the upside down world of what might be the most dysfunctional organization ever put together, which is the New York Legislature. There is a bill in the State Legislature to establish a no fault divorce law. It is opposed by the Catholic Church and NOW (National Organization For Women). No surprise about the bishops, but NOW? Go figure, I don't understand its opposition. (To be fair, I haven't researched it.)

The real sticking point appears to be that everybody else is in favor of passing the bill. Only in Albany would this be a hindrance. Since the bill is bound to pass once it is out of committee, everybody wants to get something tacked on to it. So there is tremendous fighting over who gets what.

The second question is what is wrong with us? Why do we have such short marriages? I don't know anything about the Turchins, and the question isn't about them, because theirs is not the only fifteen month marriage. The average duration of a marriage that ends in divorce is under eight years. For some reason, we are not very good at figuring out what kind of person we can spend the rest of our lives with.

I don't have an answer to the second question, but I am positive that the answer is not making divorce more difficult. Couples don't need a lawyer to get into a marriage, and they shouldn't need one to get out. Children and, to a lesser extent, property, are different issues, but the divorce should not be held hostage to getting those problems resolved.

Update: In 2010, New York passed its no-fault divorce law, which permits couples to divorce where the relationship between the spouses has broken down irretrievably for a period of at least six months.

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