Gotham Gazette

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In three recent New York divorce cases, the plaintiffs were surprised to learn that what they considered cruel treatment by their spouses was not cruel enough to end their marriages. These cases, along with a recent ruling involving the break-up of a same sex couple, casts light on the current state of breaking up in the state.


When Carol Gross testified that her husband of 37 years, Jerome Gross, “had physically forced himself on her sexually,” and “grabbed her, pulled at her, thrown her on the bed, and pushed her against the wall,” a Manhattan trial judge granted Ms. Gross a divorce on the grounds of cruel and inhuman treatment.

The Appellate Division of New York State Supreme Court disagreed. It ruled that the plaintiff had not proved her case. She must remain married to Mr. Gross and continue to live with him (unless she leaves the Upper West Side apartment that they share).

The Domestic Relations Law, which governs divorce, defines cruel and inhuman treatment as behavior “harmful to the plaintiff’s physical or mental health and makes cohabitation unsafe or improper.” But in a unanimous decision, the five judges – all of them men – on the appellate bench said that Ms. Gross’ testimony was vague and that ”plaintiff did not elaborate in any other way about what she meant in stating that the defendant had ‘forced himself on her sexually.’” The judges found, “In its vagueness and generality, this testimony could include conduct ranging from the criminal (e.g., forcible rape) to the merely obnoxious. Moreover, plaintiff offered no evidence that she sustained any injuries as a result of this incident.”

Citing prior cases, including a 1976 case in which a “defendant severely beat plaintiff on two occasions causing bruises and black and blue marks,” the opinion in Gross v. Gross called “the absence of medical evidence here particularly telling.” The court decided, “At bottom, we are left to speculate as to the effects, if any, of defendant’s conduct on plaintiff’s physical and mental well-being.” In reversing the trial decision, the court commented that, apart from the alleged conduct, the couple had an otherwise civilized social relationship.

Around the same time, in another divorce case based on cruelty, a different trial judge rejected a husband’s claim of cruelty. In that case, Hearst v. Hearst, the husband said that his wife’s control of the couple’s money and property had exacerbated his many physical ailments and led his health to deteriorate. But both the trial and appeals courts found that the wife’s alleged actions did not constitute cruelty. Calling the situation an example of “marital discord,” the Appellate Division agreed that the trial court had acted properly when it denied the husband a divorce on grounds of cruelty.

And a recent divorce action labeled CL v. JL was not even permitted to go to trial when a Brooklyn judge dismissed the plaintiff’s complaint because of “a lack of particularity in the allegations.” The plaintiff – the wife in this case -- had accused her husband of “verbal tantrums, ... humiliating and vilifying the friends and relatives of the plaintiff,” and failing to support her and the household. The judge found that the allegations were too “vague to give husband notice so that he could defend against them.” It might have been different, the judge wrote, if for example, the marital home had been lost to foreclosure or had collapsed injuring the wife.


New York does not have “no fault” divorce, in which a marriage can be dissolved without either party being found guilty of some kind of marital misconduct. In New York, the law requires that grounds for divorce be established unless a separation agreement has been in place for one year. (There is talk of reducing that time requirement, perhaps to as little as three months.)

A separation agreement does not assign blame but is a contract that settles the business between the couple – money, custody and so on. If a couple cannot reach agreement on all that, a marriage can be dissolved only if one party is found to be at fault. The fault grounds, in addition to cruel and inhuman treatment, include adultery, abandonment, or defendant’s imprisonment for three consecutive years.

Although some may see these cases as reasons to change the law and permit divorce without proof of fault, others point out that only a very small number of divorces in New York result in contested trials, where fault grounds must be alleged, proved and subjected to cross examination. In most cases, the defendant does not contest the plaintiff’s charges and the divorce is granted. In all of New York City in 2006, only 3,385 divorce actions or 11 percent of the 31,670 filed were opposed by the defendant and scheduled for trial.

Even in the contested cases, the disputes rarely center on fault. According to the judges who hear matrimonial cases (as divorces are euphemistically called), those taken to trial usually involve money, property, support or child custody. Fault is almost never considered in resolving the economic issues of a marital dissolution.

Many lawyers and advocates for women favor retaining fault, since fighting the divorce may be the only leverage the spouse with less money, who is usually the wife, has in securing support, property or custody of children.


In the meantime, although same-sex couples cannot marry in this state, it seems they can get divorced. Or, at least, at the end of the relationship, their property may be distributed on an equitable basis – or what a judge finds to be equitable -- just like that of any other married, divorcing couple. A recent decision by another Manhattan judge produced what might be termed a non-marital divorce.

In the case of CY v HC, Yaffa Cheslow and Constance Huttner, both lawyers, had become registered domestic partners and exchanged vows in a religious service. Soon they jointly purchased an Upper West Side townhouse for $3.46 million. They lived as a couple with their three children (two of Huttner’s and one of Cheslow’s) and were, as the judge described it, “in all respects a family.” But, after two years in the family home, the couple separated.

Traditionally, where title to property is held jointly, as it was in this case, there would have been a 50-50 ownership interest and 50-50 split of the proceeds of the sale of the home. While title -- the name on the deed -- no longer controls in divorce, in any other situation a deed listing two names carries a presumption of equal interests. But Huttner argued that there was not an equal investment in the home because Cheslow had contributed only 7 percent of the down payment, closing costs, renovations, mortgage and insurance payments. As the larger contributor, Huttner said that the deed to the jointly held property did not accurately reflect their true, proportionate interests.

The judge could have found that, because the deed reflected a 50-50 interest, the property should be partitioned equally. Instead, the judge likened the case to a divorce. She deducted what each woman had put into the property as far as could be established at trial and divided the remainder in half. In this unusual result, the court concluded that Huttner was not entitled to credit for “any disparities in payments made by the parties to carry and maintain the townhouse after the couple moved in, and prior to separating” -- in other words during the period when they were partners in a family relationship and not mere real estate partners.

As reflected in these cases, it is often easier to form a bond than to dissolve one.

Emily Jane Goodman is a New York State Supreme Court Justice