Once again, the New York Courts have held that grounds for divorce count; we do not have no fault divorce and the Courts will not make it up.
The Second Department Appellate Division, sitting in Brooklyn, held in Davis v. Davis that “The plaintiff’s allegations of social abandonment may appropriately be viewed as merely another way of claiming ‘irreconcilable differences’ between spouses, that do not constitute a cognizable ground for divorce.”
The wife/plaintiff claimed that her husband refused to eat meals with her, celebrate holidays together, or to attend family functions. The wife alleged that the husband’s behavior amounted to a form of abandonment.
Justice Dillon, author of the opinion, made a clear distinction between sexual abandonment and social abandonment. His point was that sexual relations are only legally recognized within the bounds of marriage and that a refusal to engage in those relations was a clear abandonment of the basis of a marriage. Social relationships are quite different. He stated that the social arrangements within marriages differ widely, that there is no clear cut standard by which to judge whether a abandonment has occurrd or not.
Accordingly, he saw this as an attempt at an end-run around the statutory requirement for grounds for divorce; any change in those requirements should come from the legislature, not the judiciary.
Accordingly, the wife’s divorce action on the basis of social abandonment was dismissed.
This blog is fundamentally about Long Island divorce mediation. Why do I discuss a rather esoteric appellate case? Because it is extraordinary to me how many potential clients come to mediation assuming that, since they want a divorce, they will get one and the only issues to resolve are the money, the children, the house, and the pension.
The reality is that either the two of you must agree to a divorce or legal separation, or one of you is going to have to hire an attorney and sue the other for divorce. Divorce mediation offers a way to avoid that disaster.
This is my third blog posting on this issue in less than a month. It comes up continually. The first of the requirements for a successful divorce mediation is that you both have the same goal.
It may be that one of you wants out of the marriage and the other recognizes that there is no realistic option of saving the marriage. That is typical. But very often, when a couple comes for an initial consultation, one of them simply assumes that he or she will get a divorce, while the other spouse is simply not prepared to cooperate in that.
If that is your situation, what do you do? In the final analysis, if one of you wants out you are going to get a divorce, even if that requires a trip to Las Vegas or a move to another state. It is a question of determination.
It is not always so simple, however. Perhaps you want a divorce but your spouse is going to fight your taking the children. Or there is some other realistic obstacle.
However, the spouse who does not want a divorce has to recognize that life will get much more difficult and unbearable in a household where one person wants a divorce and the other is blocking it for financial or convenience reasons. What you are doing in that situation is looking at a long term, expensive litigation with uncertain results at the end.
The reality is that a marriage that is over is over. Both parties have to recognize that it is in their own best interests, and that of their children, to negotiate a settlement that establishes the most positive future for everyone involved, without losing all of your assets in the process.
Divorce mediation is precisely that process, where the two of you can negotiate face to face, without the interference of lawyers, judges, law guardian, and who know what else, in fashioning an end to the present nightmare and a future that works for everyone.
