32 Misc. 3d 293
N.Y. Sup. Ct.2011Background
- Married October 4, 1992; three children; marital residence in Great Neck/Cedarhurst; husband physician with income over $500,000; wife a homemaker with limited separate assets.
- Action No. 2 seeks no-fault divorce under DRL §170(7), pendente lite maintenance, child support, education costs, housing charges, insurance, and counsel fees.
- Prior motion ordered action No. 1 and No. 2 joined for trial; court allowed bifurcated trial on grounds but deferred financial issues.
- Parties submitted motions January 12, 2011; husband consented to carrying charges and health insurance during pendente lite period; court reserved decision on some issues.
- Court denies wife’s partial summary judgment on no-fault grounds; retains jurisdiction to resolve support, maintenance, and other ancillary relief; cross motion regarding parenting time partially granted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether wife is entitled to partial summary judgment on no-fault divorce grounds | Wife seeks immediate divorce under six-month irretrievable breakdown | No-fault grounds require resolution of economic issues before divorce | Denied; no-fault judgment cannot be entered until economic issues are resolved |
| Temporary maintenance and support under DRL §236(B)(5-a) | Formula should apply with carrying charges; wife needs funds | Carrying charges are not standalone maintenance; must follow statutory factors | Award of $10,922.29/month and $3,000/month child support; 60/40 educational cost split; carries out statutory factors |
| Bifurcated grounds trial under no-fault regime | Bifurcation appropriate to separate fault and economic issues | No bifurcation allowed under new statute until economic issues resolved | No bifurcation; recall of prior bifurcated trial; proceed to full resolution of issues |
| Parental access and passport control | Wife should have limited parenting time; passports should be held | Parents should have access; passports should not be surrendered | Cross motion granted; schedule set; passports not deposited; no travel without court approval |
Key Cases Cited
- Gleason v Gleason, 26 N.Y.2d 28 (N.Y. 1970) (no-fault divorce framework; irretrievable breakdown recognized)
- Motler v Motler, 60 N.Y.2d 244 (N.Y. 1983) (permissive counterclaims; no defense to new no-fault scheme)
- Coffman v Coffman, 60 A.D.2d 181 (2d Dept 1977) (implications of divorce and remarriage rights under statutory scheme)
- Selznick v Selznick, 251 A.D.2d 489 (2d Dept 1998) (allocation of retroactive support and fees; treatment of bills)