While the Divorce Reform Act of 2010 added a seventh ground to the Domestic Relations Law allowing a couple to obtain a divorce on the basis that the marriage had irretrievably broken down for at least six months, it is still controversial whether this allows the spouse who did not file for divorce to contest the divorce.
Originally, in the matter of Strack v. Strack, Justice Muller in Essex County determined that a spouse is entitled to a trial over whether a marriage is beyond repair. Similarly, Justice Quinn of Suffolk county ended a fifty six year marriage but only after a trial where he determined that the marriage had been "irretrievably broken." Therefore, in that case the spouse was entitled to contest the divorce, even though that spouse lost.
But other judges state that a spouse is not entitled to a trial, and one spouse's declaration that the marriage is broken down is sufficient.
In the recent decision of Vahey v. Vahey, Justice Palmeri of Nassau County followed the decision of Justice Falanga from Nassau County in the matter of
A.C. v. D.R., and determined that the decision whether to grant a divorce on this ground is entirely subjective in nature. Therefore, one spouse's declaration that the marriage is broken is sufficient to grant a divorce under DRL 170(7).
Until this matter is appealed to the Appellate Division, the Supreme Court shall continue to be split. While some argue that a spouse should be entitled to a trial because the denial is a violation of his or her Due Process rights, others find that the legislature intended for DRL 170(7) to be "no-fault."
However, the law is still clear that a divorce shall not be granted until all ancillary issues of equitable distribution,
child support are resolved. Thus, even though the issue of grounds has made significant strides in the
New York legislature, it is important to consult with an attorney to navigate your divorce.