Fourth Department Concurs with Justice Anthony J. Falanga’s Decision in A.C. v. D.R.
Date: November 30th, 2012
Location: New York Law Journal, November 28, 2012

In a recent decision, the Supreme Court of the State of New York, Appellate Division, Fourth Judicial Department, concurred with a decision rendered by Jaspan Schlesinger LLP partner Justice Anthony J. Falanga prior to his joining the Firm.  

Justice Falanga opined in A.C. v. D.R., 32 Misc. 3d 293, that Domestic Relations Law 170(7), enacted October 12, 2010, is a true “no-fault” divorce which does not require proof of any fault.  A divorce proceeding initiated prior to enactment of DRL 170(7) does not preclude one spouse from dispensing with the fault issues in a matrimonial action when s/he has sworn under oath that the marriage has been irretrievably broken for a period in excess of six months as required by the “no-fault” enactment in DRL 170(7).

This interpretation is applicable even when an action based upon fault has been languishing in the Court awaiting determination on the fault base issue.  DRL 170(7) permits the Court to determine the entitlement to a judgment of divorce based upon the assertion by either spouse, in a sworn statement under oath that the marriage has been irretrievably broken for a period in excess of six months.  In dispensing with the fault issues the Court is able to focus upon the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and expert fees and expenses as well as the custody and visitation with the infant children of the marriage.  Once those issues are determined the Court is empowered to grant a judgment of divorce.

Justice Richard A. Dollinger, Supreme Court Monroe County in Palermo v. Palermo, 35 Misc.3d 1211A, concurred with this finding and the Fourth Department at 2012 NY Slip Op 7528, affirmed this conclusion.

We gratefully acknowledge the expertise Justice Falanga brings to the practice of law and the value of his addition to our firm and the service we provide to our clients.

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Stephanie A. Speirs is sworn in at the Appellate Division, Second Judicial Dept.

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