FAULT-BASED DIVORCE IS ALIVE AND WELL IN NEW YORK, AS TWO RECENT DECISIONS SHOW

An appellate court in New York closed out 2001 with two decisions -- issued the same day -- contemplating whether men had behaved cruelly enough toward their wives that the wives should be entitled to a fault-based divorce.

In one case, Omahen v. Omahen, the court held that the husband's hurling the epithet "Japanese Pollack," was insufficiently cruel to justify a fault-based divorce, because it posed no danger to the wife's health or safety. In the other, Gentner v. Gentner, the court held that the husband's having an extramarital affair was sufficiently cruel to justify a fault-based divorce.

These cases are interesting because they represent a mode of divorce reminiscent of a much earlier time in history -- one that has long since been abandoned in some states and is little used in others. And within this mode, this court relies on a substantive legal standard more characteristic of the Nineteenth Century than the Twenty-First.

A Brief History of Fault-Based Divorce

Until more than halfway through the Twentieth Century, however, judicial divorce was only available on the basis of fault. Divorce was a remedy granted to an innocent spouse when the other spouse has breached some essential aspect of the marriage contract.

Moreover, the plaintiff spouse had to prove the grounds for divorce that he or she alleged with corroborating evidence—confession by the defendant spouse was not sufficient. There was no such thing, in theory, as divorce by agreement. (In fact, couples colluded all the time, trumping up evidence of fault and putting on a show for the court.)

Traditional fault grounds for divorce included adultery, abandonment, neglect, and commission of a felony. Later grounds included intemperance and cruelty.

The number of grounds available varied a great deal from state to state, with southern states generally retaining more restrictive laws than northern ones. Liberal states like California had an expansive list of grounds for divorce, while New York staked out its position early as the most conservative of the states, permitting divorce only on grounds of adultery.

Divorce on Grounds of Cruelty

Cruelty quickly became the most popular ground for divorce. By 1886, nearly four-fifths of the states permitted divorce on the basis of cruelty, and in many of those states cruelty was the most frequently cited ground.

This ground was appealing to plaintiffs -- whether or not they were colluding with their spouses to obtain the divorce -- because it was vague and amorphous and thus it permitted courts to grant a divorce based on the idiosyncratic events of a particular marriage. By 1957, cruelty accounted for more than half of all divorces granted.

Courts took advantage of the vague standard and began to interpret "cruelty" broadly to include not only physical abuse, but also emotional abuse, casting aspersions of bad character, and sexual indignities. Appellate courts approved of these broad interpretations of the cruelty standard, recognizing that cruelty encompasses more than wife-beating.

In California, for example, only twenty percent of cruelty plaintiffs filing for divorce between 1890 and 1910 alleged physical abuse, while the remainder obtained divorces based on a wide variety of offenses. These offenses included insulting a woman by refusing to have dinner with her friends; throwing the contents of a chamber pot in a wife's face; and burning old rags early in the morning in order to smoke a wife out of bed.

Modern Divorce: The Move Towards No-Fault Grounds

Beginning in 1969, the tides of divorce law began to turn. California adopted the nation's first "no-fault" divorce law, which permitted couples to obtain a divorce upon a finding of "irreconcilable differences." (This is the ground alleged recently, for example, by Michael Jordan's wife, who is seeking a divorce from him in Illinois). Every state eventually followed suit by adding at least one no-fault ground for divorce.

No-fault grounds can take the form of a substantive standard like California's, which does not look to see who is at fault for marital breakdown, but rather looks at whether the marriage is objectively dead. No-fault grounds can also take the form of a mandatory period of separation, which then provides a ground for divorce. This type of ground simply uses living apart as a proxy for marital breakdown.

With either type of no-fault ground for divorce, divorce has become essentially available on demand. It is incredibly rare for a couple seeking a divorce to be denied.

While every state has at least one no-fault ground, two-thirds of them have nevertheless retained fault grounds as an alternative. Plaintiffs seek fault-based divorces, though more complex and messy, for different reasons.

In some states, a fault-based divorce can be obtained more quickly, because there is no mandatory separation period. In others, an "innocent" spouse fares better in terms of custody, property division, and financial support than the one at "fault." In still other instances, a spouse will seek a fault divorce because he or she simply wants public vindication of a wrong done to him or her by a cheating or abusive spouse.

Not-So-Modern Divorce In New York

Traditionally the most conservative state with respect to divorce, New York did eventually adopt a no-fault ground for divorce. But even its no-fault ground is stricter than most others: it requires a one-year period of separation pursuant to a written, notarized separation agreement that has been filed with the court. Moreover, in order to be valid, the separation agreement must privately resolve all issues relating to property division and spousal support.

The New York statute also retains traditional fault grounds like adultery, abandonment, cruelty, and imprisonment for a felony. Spouses who are unable to reach an agreement between themselves must resort to the fault system. That may be how the Omahen and Gentner wives ended up filing for fault-based divorces.

The New York court's interpretation of what constitutes cruelty in the Omahen case is much stricter than that of courts in most states. (As noted above, Omahen is the case in which the husband called the wife a "Japanese Pollack" and the court refused to grant a fault divorce).

Like other states, New York requires that behavior constituting cruelty be part of a course of conduct, and that it amount to something more than "mere incompatibility." But unlike most other states (today and a century ago), New York, at least according to this court, requires proof of physical injury or, at the very least, physical manifestation of mental injury to make out a case of cruelty.

In Omahen, the wife proved that her husband frequently ridiculed her lack of understanding about American culture, referred to her using derogatory epithets, and spent most of his free time ignoring her. However, she had no physical injury to point to other than a slow gain of 14 pounds over five years, most of which she ultimately lost.

Without evidence of ill affects on her health, or other circumstances that made cohabitation unsafe, the wife in Omahen could not make out a case of cruelty as grounds for fault divorce under New York law. Strikingly, this approach to cruelty as a ground for divorce would have been considered unusually strict at the turn of the last century, much less this one.

The court's decision in Gentner is more in step with other states. Cruelty as a grounds for divorce has long been used as a vehicle for remedying adultery, even though adultery is itself a ground for divorce. However, it stands in some conflict with Omahen.

As noted above, in Gentner the wife was granted a divorce upon grounds of cruelty because the husband was openly carrying on an extramarital affair. But the court in Gentner—the same court that decided Omahen on the same day—made no reference to a requirement of physical injury or manifestation of mental injury in agreeing with the trial court's finding of cruelty.

If this requirement ruled out a divorce based on epithets and ridicule in Omahen, why didn't it also rule out a divorce based on adultery in Gentner? In neither case was physical injury, or manifestation of mental injury, apparently present.

A Question of Motivation

One might wonder why the husbands appealed in the first place. After all, there is no financial incentive to dispute the grounds for divorce in New York, because marital fault is not relevant to determinations of support or property division unless it is so severe as to "shock the conscience," and the husbands in these two cases should have had little, if any, fear that their wives' grounds for divorce would meet this standard.

With no financial penalty at stake, the husbands may have appealed because they simply did not want divorces, or at least, if divorce had to happen, did not want to be the one publicly blamed for the failed marriage. People behave strangely in the face of divorce. Just ask the Philadelphia man who recently emerged from nearly seven years in prison for contempt of court because he refused to turn over the $ 2.5 million in marital assets demanded by the court!