New York May Have Fault Divorce Nostalgia Syndrome
However it may be that you define the word “romance,” it is undeniable that romance runs through the river that is the divorce process. On a superficial level, that juxtaposition may seem incomprehensible, but even the divorce lawyer that is half paying attention knows full well that romance is part and parcel of the divorce story.
Of course, there are always exceptions. Some divorcing persons decree that they will never partake in any romantic relationships for the rest of time. Many, however, cannot resist the allure of togetherness, and that brings us to the topic of dating during divorce, and more specifically, the Appellate Division, First Department’s recent decision in Allen v. Allen, 2023 N.Y. Slip Op. 06588 (N.Y. App. Div. 2023).
This author was admittedly surprised at the sheer volume of articles, blogs, and punditry online about the topic of dating during divorce, and whether or not it is “allowed” in New York while a divorce action is pending. A Google search of “can you date during divorce in New York” yields an affirmative answer but with caveats and warnings of potentially entering the Gates of Hades.
Some websites respond to the question with this quote: “those who choose to do this should be extremely cautious.” Others advise that dating during divorce “isn’t a great idea.” Then there are the “dos and don’ts” of dating during divorce, how to “take it slow,” and not to be forgotten in our current culture, how to “use the apps” during divorce.
Putting aside the mountain of talking heads on this topic, in New York’s “irretrievable breakdown” (i.e., no-fault) divorce structure—which as I will discuss below is not a true no-fault regime—dating during divorce should in theory be a non-issue, unless of course in the financial context there are issues of marital waste.
There is also the fact that one divorcing spouse’s spending on a boyfriend (“BF”) or girlfriend (“GF”) may offer proof of his/her ability to provide more support to the other divorcing spouse and/or their children in common. In terms of custody, concerns over introducing the BF or GF to the children of divorce have also arisen in decisional law.
We now have a First Department decision that, at least in my view, is quite emphatic on this topic. In Allen, Judge Ariel D. Chesler prohibited the parties from having romantic partners in the “homes,” and that aspect of Judge Chesler’s decision was modified by the First Department “to the extent of vacating the provision prohibiting the parties from having romantic partners in the residences, and otherwise affirmed.”
To illustrate the potential magnitude of the Allen decision, I think it is best to break it down sentence by sentence. The First Department’s decision does not elaborate on the legal and/or factual basis for Judge Chesler’s order, and that of course puts us at a disadvantage in trying to analyze the decision.
That said, we must work within the confines of the First Department’s decision, which held that it was “an improvident exercise of the court’s discretion to preclude the parties from bringing romantic partners to the marital residences.”
Here are the three sentences that the First Department’s decision includes on this issue:
1. “While under Domestic Relations Law 234, the court has some discretion to make orders regarding possession of property under the circumstances of each case, nothing in the record demonstrates that the presence of the husband’s romantic partner at one of the marital residences in any way impacted the plaintiff wife’s safety.”
2. “A party going through a divorce has ‘a right to develop his or her interests or personal life’ (citation omitted).”
3. “At most, the interactions with the romantic partner, which by all accounts were civil, made the wife uncomfortable, and discomfort is an insufficient basis to exclude an otherwise non-problem-causing party, particularly where children are not involved.”
I will venture to guess that numbers “2” and “3,” above, may well be cited for years to come when BF/GF issues are litigated in New York divorce courts.
Matrimonial courts have a uniquely vast amount of discretion to do what is just and proper, and while Section 234 of the Domestic Relations Law is premised upon a married person’s safety, in practice, as a divorce lawyer, are you going to advise your client that (a) having your BF or GF over to “one” of the marital residences is, how shall we say this, provocative, or (b) are you going to simply say that based upon the decision in Allen, go live life to the fullest provided no children are involved?
What we cannot tell from the First Department’s decision is why the plaintiff-wife was “uncomfortable,” however, playing devil’s advocate, do we really need an explanation? Here is my conundrum: if a party going through a divorce has a “right to develop his or her interests or personal life,” and “discomfort is an insufficient basis to exclude an otherwise non-problem-causing party, particularly where children are not involved,” then someone needs to explain to me why fault divorce is still on the books in New York.
Indeed, while fault divorce (e.g., adultery, abandonment, cruel and inhuman treatment) is exceedingly rare, it still persists, and it is still an option. At least some of you reading this have probably represented a client who has been on the receiving end of a fault-based cause of action for divorce post-the 2010 introduction of “irretrievable breakdown” (no-fault) divorce in New York (I have).
So with that in mind, if the GF or BF that is present at “one” of the marital residences is the subject of a cause of action for divorce based on grounds of adultery, i.e., the reason that the marriage in question blew up, would that generate enough “discomfort” to change the outcome in Allen (again, we cannot know the precise facts of that case based on the First Department’s decision)? Also unclear from the Allen decision is whether or not the “one” marital residence was a weekend/vacation home versus a primary home, and whether or not that distinction has any difference.
Or, try this hypothetical: what if the GF or BF that is present at “one” of the marital residences is the subject of a cause of action for divorce based on grounds of constructive abandonment, i.e., the reason that the marriage in question fizzled is that one spouse continuously rejected the other spouse’s sexual advances—and instead chose to pursue a relationship with the GF or BF who is now hanging out at “one” of the marital residences. Would that generate enough “discomfort” to change the outcome in Allen?
I’m not here to weigh in one way or the other on whether or not you should, or should not, include certain causes of action in your divorce pleadings. The divorce lawyer needs to make that calculus carefully based on the facts of each case.
I will, however, state that I do not see how New York can reconcile having fault divorce (at least in the cases of adultery and constructive abandonment) on the books when “A party going through a divorce has ‘a right to develop his or her interests or personal life’ (citation omitted).”
Fault-based divorce in New York should not be viewed as some kind of relic worthy of inclusion in The Smithsonian—divorcing spouses facing weaponized claims for fault-based divorce may endure immense and unnecessary calamity, together with an escalation of legal fees that should not occur in the first place. At minimum, our legislators need to explain why fault-based divorce still exists in New York. I believe we are entitled to an answer, particularly in view of the Allen decision.
"New York May Have Fault Divorce Nostalgia Syndrome," by Alan R. Feigenbaum was published in the New York Law Journal on February 5, 2024.
Reprinted with permission from the February 5, 2024, edition of the New York Law Journal © 2024 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.