Brooklyn Court Rules on Divorce with One Spouse in Prison for Assaulting the Other

behind bars

Photo Credit: Normana Karia /

A person seeking a divorce anywhere in the United States in 2016 is no longer required to prove wrongdoing by the other spouse. In 1970, California enacted the nation’s first “no fault” divorce statute, which allows a spouse to bring a cause of action for divorce based on “irreconcilable differences.” New York was the last state to authorize no-fault divorce, on the ground that “[t]he relationship between husband and wife has broken down irretrievably for a period of at least six months,” in 2010. Many states now only allow no-fault divorce, but New York is among the states that still allow fault-based claims for divorce, such as “cruel and inhuman treatment,” abandonment, and adultery. This can play a role in multiple aspects of a New York divorce, as a Brooklyn court noted in a December 2015 decision, Alice M. v. Terrance T. The court went so far as to describe it as a perfect example of “egregious conduct by one spouse against another spouse.”

The two main issues in the Alice M. case were the equitable division of marital property and a claim for spousal maintenance. Under New York law, most property acquired during a marriage is deemed marital property. Section 236(B)(5) of the New York Domestic Relations Law (DRL) establishes procedures for the equitable distribution of marital property, based on factors like the age and health of the parties, each party’s income, equitable claims or waste by one spouse, or other factors that the court “expressly find[s] to be just and proper.” The court in Alice M. noted that, based on a precedent case, “marital fault is not…‘a just and proper’ consideration in determining equitable distribution of marital property.”

Spousal maintenance, sometimes still known as alimony, is governed by § 236(B)(6) of the DRL. The court may order an amount to be paid by one spouse to the other, based on economic factors like whether child support is to be paid and in what amount, the payor’s ability to pay, and the payee’s needs; and on fault-based factors like waste of marital property and acts of domestic violence by one spouse against another.

The parties in Alice M. were married in 2002, and the plaintiff/wife filed for divorce in 2011 on the ground of “irretrievable breakdown.” The defendant/husband had been convicted of rape in the first degree against the plaintiff. At the time of the divorce filing, he had already begun serving a 40-year prison sentence. The defendant filed a pro se answer with a cross-claim for fault-based divorce on the ground of “cruel and inhuman treatment,” alleging that the plaintiff “‘falsely accused’ him of domestic violence and rape.” He sought spousal maintenance and a disproportionate share of marital property.

The court granted the plaintiff’s request for a no-fault divorce and denied all of the defendant’s claims. It first found that his cross-claim was an improper attempt to “collaterally attack his criminal conviction,” and it found that principles of collateral estoppel barred his fault-based divorce claim. It therefore rejected his arguments regarding equitable distribution and spousal maintenance.

A proceeding for divorce in New York City involves a broad range of issues, from property division and maintenance to child custody and support. As a result, it requires careful planning and preparation with the assistance of an experienced family law attorney, who can guide you through the New York City court system and protect your interests and assets. Ingrid Gherman has practiced family law in New York City for more than 30 years. Contact us online or at (212) 941-0767 today to schedule a confidential consultation to discuss your case.

More Blog Posts:

New York Court Rules Against Husband’s Voluntary Discontinuance of Divorce Case, New York Divorce Attorney Blog, March 14, 2016

Residency Requirements for a New York Divorce, New York Divorce Attorney Blog, March 4, 2016

New York Lawsuit Claims Damages for Defendant’s Failure to Get a Divorce, New York Divorce Attorney Blog, June 16, 2015


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