Up until recently there has been some uncertainty about New York’s “no fault” divorce, which came to be only in 2010 after legislative action that took a long, long time to come about. Domestic Relations Law section 170(7) provides the relatively new grounds for divorce, where: “The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath.”

To most that probably seems fairly straight forward.  Some New York trial courts, however, were willing to allow the defendant in a divorce action to challenge such grounds if alleged.

Monroe County court says no fault means no fault.

Enter the trial court in Monroe County, confronting a divorce action in early 2011. The Palermos were married in 1977, but had been living apart for at least ten years. Ms. Palermo wanted out of the marriage, but apparently Mr. Palermo did not. Ms. Palermo ultimately based her divorce action  on New York’s no fault provision. Mr. Palermo challenged the action, essentially inviting the court to determine whether the marriage in fact had irretrievably broken down for at least six months. (Apparently Mr. Palermo was not of the opinion that Ms. Palermo’s efforts to fight tooth and nail in court to get divorced was sufficient evidence.)

In a thoughtful exegesis on New York’s relatively new no-fault divorce law, Judge Dollinger declined the invitation to delve deep into the private lives of Mr. and Ms. Palermo, finding that the New York legislature sought to prevent such judicial intervention. He wrote:

New York’s legislature, faced with a choice between “some fault” and no-fault as the grounds for granting a divorce, chose no-fault and forever eliminated the prospects that a partner to a marriage would be required to point a finger at the other during a trial and say “you are at fault for our marriage’s demise.”  – Judge Richard A. Dollinger, in Palermo v. Palermo, 2011 NY Slip Op 52506(U), 35 Misc 3d 1211(A) (Sup. Crt. Monroe County Oct. 20, 2011)

The court ruled that all it takes is what the law says: one of the spouses stating under oath that the marriage has irretrievably broken down for at least six months. The court was not going permit the other spouse to compel the court to look at whether the marriage was objectively broken down. One spouse’s subjective opinion carried the day.

Appeals court agrees that no fault divorce means no fault.

Mr. Palermo appealed the decision. He lost. The appeals court (4th Department) affirmed Judge Dollinger in November 2012. 953 NYS2d 533 (4th Dept, Nov. 9, 2012). In words that must sing to the ears of a trial court judge, the appeals court “ordered that [Judge Dollinger's] order so appealed from is unanimously affirmed without costs for reasons stated in the decision at Supreme Court.” [emphasis added]. Earlier this month, the 4th Department again rejected Mr. Palermo’s efforts to fight. It denied Mr. Palermo’s motion for leave to appeal to the Court of Appeals, 2013 NY Slip Op 00676 (4th Dept., Feb. 1, 2013).

The 4th Department covers much of Western New York. There are four departments in the state, however, each with an appellate division capable of reaching a different decision in a similar case. Nevertheless, until another department, or New York’s highest court (the Court of Appeals), reaches a contrary decision, the trial courts throughout New York State should be following the 4th Department decision in Palermo v. Palermo.

No fault divorce is the law of the land in New York.

Provided that is the case, no fault divorce under DRL s. 170(7), throughout the state of New York, should remain just that: no-fault.

Spouses stuck in a marriage of sufficient duration that they believe to be irretrievably broken can breathe a sigh of relief. And move on with a divorce. (And as always, this is not legal advice; consult with a lawyer if you’re considering moving ahead alone with a divorce.)

Please feel free to join!

A popular current book is The Art of Racing in the Rain by Garth Stein. Without giving anything away, the novel in part describes a bitter dispute between the father of a child and his in-laws.

When it comes to raising your children, grandparents can be a source of incredible comfort or irritation (or somewhere in between). The same can hold true with respect to divorce or separation. Your parents or in-laws may have many ideas about the proper way to get divorced or separated, and how to assist your children through this process. Those ideas may not align with your own.

You may have strong feelings about the amount of access your children’s grandparents should have to your children after divorce or separation. Or, there may be disagreement between you and your spouse on the issue. In either case, it is probably a good idea to define in your separation agreement what amount of access, if any, the grandparents will have to the children. The issue is ripe for mediation. Additionally, it may be a good idea to explain your decision to the grandparents, to avoid surprises or to mitigate potential hurt feelings.

Grandparents’ access to grandchildren after divorce or separation

What happens if you and your spouse agree that the grandparents should have no access to the children and the grandparents disagree with your decision? Can they force you to allow them access to your children? Possibly.

In New York State, grandparents do not have an automatic right to visit with their grandchildren. Grandparents do have the right, however, to petition the court for access to their grandchildren. See Domestic Relations Law Section 72.

First, the grandparent must be a biological grandparent, or grandparent by virtue of adoption. Second, the grandparent must have standing. Standing will exist where one or both of the parents of the minor child residing in the state are deceased, or where equity (fairness) would make standing appropriate. Such a showing of fairness should require either an existing relationship between grandparent and child, or sufficient efforts to establish one by the grandparent where the parents have frustrated the same.

The equity grounds for standing may exist even where one or both parents do not want the grandparent to visit with the child (and even in cases where divorce or separation is not at issue). If standing is established, a hearing will be held to determine whether it is in the best interests of the child to grant grand parental access to the child. Animosity between parents and grandparents is not enough to deny access.

It is most often the case that grandparents love their grandchildren just like the children’s parents love their children: unconditionally.  It is also usual that ensuring that the children have access to their grandparents helps children in the long run.  Parents should understand, however, that when there is animosity between parents and grandparents, and that animosity impacts the ability of the grandparents to see their grandchildren, the grandparents may have an ability to compel their own access to the children.

What do you think? How much access should grandparents have to their grandchildren after divorce or separation?

Did you choose the right process?

Let us know. Our message is always that there is no “one size fits all” for every divorce or separation situation.

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