The Trend Toward A Strict Interpretation of the Cruel Treatment Ground for Divorce in New York

While the rest of the United States has rapidly moved toward no fault divorce, New York’s courts continue to squander valuable resources by requiring litigants and their attorneys to contemplate the minutiae of what constitutes sufficiently egregious marital misconduct under our antiquated fault-based divorce statute. Many years after most states enacted laws that have rendered “fault” increasingly irrelevant to divorce, New York’s courts have subjected claims of cruelty to surprisingly strict scrutiny. Recent decisions suggest that the trend is toward an increasingly strict interpretation of New York’s Domestic Relations Law. As a practical matter, this makes it more difficult to get a divorce.

Domestic Relations Law (DRL) 170(1) provides:

§ 170 Dom. Rel. Action for divorce.
An action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on any of the following grounds:

(1) The cruel and inhuman treatment of the plaintiff by the defendant
such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant.

This Statute requires a party to establish both the specific acts of cruelty perpetrated by the defendant, as well as the effects of that treatment. By forgetting or failing to establish the effects of the defendant’s actions, plaintiffs have failed to satisfy the statute’s requirement that the conduct endangered their well being so severely as to make continued cohabitation “unsafe or improper”. In Hearst v. Hearst, 40 A.D.3d (1st Dept. 2007), the Appellate Division upheld the lower court’s decision that denied the plaintiff-husband’s claim for divorce, observing that the husband had failed to demonstrate that the deterioration of his health was actually caused by the defendant’s conduct.

In contested divorce actions, it is essential for litigants to provide detailed testimony about both the defendant’s conduct, as well as the deleterious effects of that conduct. Until New York’s legislature acts to bring our antiquated divorce laws into the 21st century, divorce litigants and their attorneys are have no alternative than to focus on minutiae surrounding alleged misconduct.

Please feel free to visit our website at for additional information about divorce law and procedure in New York. Marc Rapaport is a divorce attorney handling contested and uncontested divorce cases throughout New York and New Jersey. He frequently lectures to local bar associations, and he is a frequent commentator on legal matters in the local and national media.

By: Marc A. Rapaport, Esq.


Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s

%d bloggers like this: