Schiffer v. Schiffer, 33 Misc. 3d 795

Schiffer and Mrs. Schiffer were married in Massachusetts on March 25, 1990, and have three unemancipated children.
On November 29, 2010, Schiffer filed for divorce claiming irretrievable breakdown for more than six months; December 21, 2010, Schiffer’s answer contested the claim.
New York’s no-fault ground Domestic Relations Law § 170(7) was enacted to allow divorce when the relationship has irretrievably broken for at least six months, upon an oath by one party.
§ 170(7) requires that economic issues (equitable distribution, spousal and child support, fees) and custody issues be resolved before judgment is granted.
Schiffer sought summary judgment asserting the no-fault ground suffices; Mrs. Schiffer cross-moved for summary judgment arguing issues remain unresolved and may negate irretrievable breakdown; both requested attorney’s fees.
The court held the statute’s text is unambiguous and requires resolution of ancillary issues before a divorce judgment may issue; summary judgment for either party was denied.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 170(7) permits a divorce judgment before ancillary issues are resolved	Schiffer: no-fault basis requires only oath; no need to resolve ancillary issues.	Schiffer: ancillary issues must be resolved before judgment; no-fault ground not alone.	No judgment until economic/custodial issues resolved; plaintiff denied.
Whether § 170(7) requires objective criteria beyond a sworn statement	Statute focuses on a party’s sworn statement of irretrievable breakdown.	Due process and consistent framework require no different standard than other § 170 grounds.	Statute unambiguous; no special treatment; relies on resolution of ancillary issues.
Whether there is a triable issue of fact on irretrievable breakdown	Evidence shows the marriage is irretrievably broken for six months.	Evidence suggests breakdown is not irretrievable and reconciliation possible.	Genuine triable issue of fact exists; due process requires finder of fact to determine irretrievable breakdown.
Whether the court should award attorney’s fees	Requests for fees due to action and motion practice.	Fees appropriate if warranted by outcome and conduct.	Both parties' fee requests denied.

Winegrad v. New York University Medical Center, 64 NY2d 851 (1985) (requirement of prima facie showing in summary judgment)
Alvarez v. Prospect Hospital, 68 NY2d 320 (1986) (summary judgment standard; burden on movant)
Zuckerman v. City of New York, 49 NY2d 557 (1980) (credibility and weight of evidence on motion)
Strack v. Strack, 31 Misc. 3d 258 (2011) (irretrievable breakdown to be determined by finder of fact)
Eversman v. Eversman, 4 Conn. App. 611 (1985) (no-fault divorce grounds; irretrievable breakdown as fact-dependent)
Woodruff v. Woodruff, 114 N.H. 365 (1974) (irretrievable breakdown; judicial determination required)
In re Marriage of Walton, 28 Cal. App. 3d 108 (1972) (irreconcilable differences require judicial finding)
Laffosse v. Laffosse, 564 S.W.2d 220 (Ky. App. 1978) (judicial function in determining breakup irretrievably)