New York Court Addresses Question of Husband’s Legal Competence to File for Divorce

marriage dissolution

Photo Credit: gerasimov_foto_174 /

In any lawsuit, a plaintiff must be able to demonstrate that they have the legal capacity to file suit against the defendant. In the context of a New York divorce case, this can mean the plaintiff’s standing to sue or their competence to bring a legal claim. A recent decision by the Supreme Court in Westchester County, New York considered a defendant wife’s claim that the plaintiff husband lacked capacity to sue because of a debilitating illness and that certain of the husband’s family members were seeking a conservatorship over him. The court’s ruling in D.E. v. P.A. dealt with questions of both competence and standing. It found that the wife’s objection regarding the husband’s capacity was not timely, but it also noted that the husband’s family would lack legal capacity to pursue the divorce case if they succeeded in the conservatorship case.

Standing” refers to a person’s legal authority to file suit in a particular jurisdiction and venue against a particular defendant for a particular claim. In general, a person must be able to show direct and tangible harm allegedly caused by the defendant. In New York divorce cases, § 170 of New York’s Domestic Relations Law (DRL) establishes the basic procedure for initiating a divorce action. It specifically states that “a husband or wife” may pursue a divorce action.

Rule 3211(a)(3) of the New York Civil Practice Law & Rules (CPLR) allows a court to dismiss a lawsuit on the motion of a defendant or another party to the case if it finds that “the party asserting the cause of action has not legal capacity to sue.” This can include a lack of standing or a lack of legal competence. “Competence” derives from the principle that a person cannot take certain binding actions if they are not capable of understanding the full implications and consequences.

The parties in D.E. were married in 2005. In the following year, the husband was diagnosed with Parkinson’s disease, a movement disorder that gradually diminishes a person’s ability to function. In March 2015, the parties arranged for the husband to move into an assisted living facility in Armonk, New York. The defendant alleges that, at this point, the husband’s daughter and previous wife became “increasingly intrusive” into their lives. Shortly after moving into the facility in May 2015, the husband had a seizure that reportedly left him more confused than usual.

After the seizure, the husband’s daughter allegedly blocked the defendant from seeing the husband. The husband filed for divorce, and the daughter moved him to a different unit of the facility. The wife claims she did not see him again for six months. Around that time, she learned about circumstances suggesting manipulation by the daughter and others. The daughter moved the husband to a facility in Connecticut and initiated conservatorship proceedings there.

The wife moved to dismiss on the ground of lack of capacity. The court denied the motion, finding that she should have made such a claim earlier in the case. It deferred ruling on certain parts of her motion, however, in favor of waiting for the adjudication of the Connecticut conservatorship case. If the Connecticut court approves the daughter’s conservatorship, the court found, it would have to dismiss the divorce case, since a conservator would lack standing to maintain a divorce under § 170 of the DRL.

Ingrid Gherman has practiced as a divorce attorney in the greater New York City area for over 30 years. To schedule a confidential consultation to discuss your case with a member of our team, contact us today online or at (212) 941-0767.

More Blog Posts:

Federal Court Dismisses Civil Rights Claim in New York Child Support Case, New York Divorce Attorney Blog, May 16, 2016

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

Contact Information