Although we now live in Oxford, for the past three years we had lived in New York. This being the city of contradictions, my most satisfying experience while living there also involved marriage but it was representing a pro bono client in dissolving one. It was wonderful to have a real life client that you can see and hear and helping her escape her dastardly husband was a good feeling.
New York’s divorce laws, however, are bizarre. To get divorced in this state you must plead a ground such as adultery, abandonment, or cruel and inhumane treatment. If you cannot prove one of these grounds you have to stay together unless you can amicably agree to a separation agreement and have the money to pay the lawyer fees. All this makes it extremely difficult to get divorced.
One would think that adultery would be an easy ground to prove. Not so. This is because in order to get divorced on the grounds of adultery there must be a third party witness. Even if the defendant admits to having an affair the court will still not grant the divorce. Not only that but one of the affirmative defenses to adultery is “recrimination” which means that if the plaintiff-spouse is also having an affair the court will not grant the divorce. In other words, if one party is having an affair they can get divorced, if both are having affairs they are made for each other. And if the plaintiff-spouse consents to the adulterous affair the court also considers the marriage too good to throw away. Now we know why there is such a booming business for private investigators.
Divorce hearings are also in front of a jury. That is unless you are the husband and the grounds are that you cannot perform in bed. Then you only have to discuss your malfunction in the privacy of the courtroom with just the judge, judge’s assistant, court-taker, court clerk, counsel, the plaintiff, and (if you are lucky) the media present. On the other hand, if you get beaten or raped by your partner and are terrified of him then you must plead your case with particularity in front of an entire jury and the defendant. The jury then decides whether your story is credible and whether you should stay married to this person. You can also plead abandonment if your spouse refuses to sleep with you but if your spouse beats you to within an inch of your life and they get escorted out of the house by the police you are, unfortunately, not considered abandoned because you consented to them leaving. Not only that but you have to have been abandoned for one year or more. So if your spouse returns after 11 months at the pub and wants to be let back in the home and you refuse, you can then get sued for abandonment. After all, we should all get a second chance, right?
You can tell where the justice system’s priorities lie when a high degree of proof is needed to get divorced on the grounds of cruel and inhumane treatment – for example, the odd punch in the face will be tolerated – but if you refused to sleep with your spouse he can divorce you without question.
It is all such a horrible, antiquated mess. My advice: don’t get divorced in New York.