Court Will Conduct Joint Trial of No-Fault and Grounds Divorce Actions

A Long Island court has answered a question raised last year after New York finally joined the other 49 states in permitting no-fault divorce: What would become of pending fault-based divorce actions? Would the fault-based divorce suit become moot, would it interfere with the filing of a no-fault suit, or would it somehow proceed in tandem with the no-fault divorce action?

In A.C. v. D.R., 202115-2010 and D.R.C. v. A.C., 203033-2010, Justice Anthony Falanga of Nassau County Supreme Court concluded that a wife's later-filed no-fault divorce action could proceed, as could her husband's, and that her suit did not have to be consolidated with her husband's fault-based action, as he had requested.

The ruling allows the wife more leverage if she wants to seek temporary spousal maintenance and attorney fees pending resolution of the issues. Provisions allowing for these types of payments were codified in the new no-fault divorce law, which went into effect on Oct. 12, 2010.

Two Cases

The parties have been married for 18 years. The husband, A.C., is a physician, making $190,000 per year, while the wife, D.R., is a homemaker. On July 27, 2010, the husband filed for divorce, originally claiming that his wife had constructively abandoned him, but later changing the allegation to one of cruel and inhuman treatment.

The no-fault divorce statute, Domestic Relations Law (DRL) ' 170(7), went into effect in mid-October, 2010. Ten days later, on Oct. 22, the wife filed her own action under the new law, alleging that the marriage had been “irretrievably broken for a period in excess of six months.” She did not receive the summons in her husband's suit until four days after that, on Oct. 26.

Pursuant to Civil Practice Law & Rules (CPLR) ' 602(a), the husband then moved to have the wife's action consolidated into his own. He claimed that both actions should be combined because they dealt with the same matters (i.e., divorce, child custody, equitable distribution) and because such consolidation would not prejudice his wife's rights. The wife, however, argued that her rights would be prejudiced by consolidation because she would be unable to avail herself of the rights provided by DRL ' 170(7). The wife's counsel argued instead that a joint trial, pursuant to CPLR ' 602(a), would be a more appropriate remedy.

Both Will Proceed

Joint trial leaves each action intact yet brings them both into one venue for simultaneous pretrial and trial proceedings. In a joint trial, separate decisions are rendered, separate judgments are entered and individual bills of costs are taxed. Justice Falanga looked for guidance to Bofinger v. Bofinger, 107 Misc 2d 573 (Sup. Ct., Suffolk Cty.1981), a case in which one divorcing party's action was commenced prior to the advent of equitable distribution and the other afterward. The Bofinger court determined that a joint trial was preferable to a consolidated trial because the second action sought a different remedy from the first. Such was also the case here. Justice Falanga explained: “In the instant case, the husband wishes to preserve his priority in time, perhaps for commencement date purposes under equitable distribution and the cause of action he has asserted, and that right should not be denied. Similarly, the wife wishes to proceed on her cause of action, either in the event the husband fails on his or , perhaps, under the concept of a dual divorce (see De Marinis v. De Marinis, 74 AD2d 815, 425, NYS2d 361 (2nd Dept. 1980)). Moreover, she may seek to pursue pendente lite relief under the new statutory guidelines, which will only be available to her in Action #2, commenced after Oct. 12, 2010. A party is not obligated to counter-claim in Action #1 just because the husband has previously commenced such an action against her. Instead, the wife may assert an independent cause of action in a separate suit (Action #2) that will not be subject to dismissal on the ground that 'there is another action pending between the same parties for the same cause of action' (CPLR ' 3211[a][4]), as long as the relief requested is different from that requested in Action #1.”

Therefore, both actions will go forward, though the husband's action, having been filed first, will be tried first.

Janice G. Inman is Editor-in-Chief of this newsletter.

A Long Island court has answered a question raised last year after New York finally joined the other 49 states in permitting no-fault divorce: What would become of pending fault-based divorce actions? Would the fault-based divorce suit become moot, would it interfere with the filing of a no-fault suit, or would it somehow proceed in tandem with the no-fault divorce action?

In A.C. v. D.R., 202115-2010 and D.R.C. v. A.C., 203033-2010, Justice Anthony Falanga of Nassau County Supreme Court concluded that a wife's later-filed no-fault divorce action could proceed, as could her husband's, and that her suit did not have to be consolidated with her husband's fault-based action, as he had requested.

The ruling allows the wife more leverage if she wants to seek temporary spousal maintenance and attorney fees pending resolution of the issues. Provisions allowing for these types of payments were codified in the new no-fault divorce law, which went into effect on Oct. 12, 2010.

Two Cases

The parties have been married for 18 years. The husband, A.C., is a physician, making $190,000 per year, while the wife, D.R., is a homemaker. On July 27, 2010, the husband filed for divorce, originally claiming that his wife had constructively abandoned him, but later changing the allegation to one of cruel and inhuman treatment.

The no-fault divorce statute, Domestic Relations Law (DRL) ' 170(7), went into effect in mid-October, 2010. Ten days later, on Oct. 22, the wife filed her own action under the new law, alleging that the marriage had been “irretrievably broken for a period in excess of six months.” She did not receive the summons in her husband's suit until four days after that, on Oct. 26.

Pursuant to Civil Practice Law & Rules (CPLR) ' 602(a), the husband then moved to have the wife's action consolidated into his own. He claimed that both actions should be combined because they dealt with the same matters (i.e., divorce, child custody, equitable distribution) and because such consolidation would not prejudice his wife's rights. The wife, however, argued that her rights would be prejudiced by consolidation because she would be unable to avail herself of the rights provided by DRL ' 170(7). The wife's counsel argued instead that a joint trial, pursuant to CPLR ' 602(a), would be a more appropriate remedy.

Both Will Proceed

Joint trial leaves each action intact yet brings them both into one venue for simultaneous pretrial and trial proceedings. In a joint trial, separate decisions are rendered, separate judgments are entered and individual bills of costs are taxed. Justice Falanga looked for guidance to Bofinger v. Bofinger , 107 Misc 2d 573 (Sup. Ct., Suffolk Cty.1981), a case in which one divorcing party's action was commenced prior to the advent of equitable distribution and the other afterward. The Bofinger court determined that a joint trial was preferable to a consolidated trial because the second action sought a different remedy from the first. Such was also the case here. Justice Falanga explained: “In the instant case, the husband wishes to preserve his priority in time, perhaps for commencement date purposes under equitable distribution and the cause of action he has asserted, and that right should not be denied. Similarly, the wife wishes to proceed on her cause of action, either in the event the husband fails on his or , perhaps, under the concept of a dual divorce ( see De Marinis v. De Marinis, 74 AD2d 815, 425, NYS2d 361 (2nd Dept. 1980)). Moreover, she may seek to pursue pendente lite relief under the new statutory guidelines, which will only be available to her in Action #2, commenced after Oct. 12, 2010. A party is not obligated to counter-claim in Action #1 just because the husband has previously commenced such an action against her. Instead, the wife may assert an independent cause of action in a separate suit (Action #2) that will not be subject to dismissal on the ground that 'there is another action pending between the same parties for the same cause of action' (CPLR ' 3211[a][4]), as long as the relief requested is different from that requested in Action #1.”

Therefore, both actions will go forward, though the husband's action, having been filed first, will be tried first.

Janice G. Inman is Editor-in-Chief of this newsletter.