Assembly Bill A5543

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  5543

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            February 13, 2009
                               ___________

Introduced  by  M.  of  A.  TITUS, BENEDETTO, O'DONNELL, FIELDS, LAVINE,
  POWELL, GALEF, CAHILL, CLARK, CARROZZA, PERALTA -- Multi-Sponsored  by
  --  M.  of  A.  BENJAMIN, BOYLAND, MARKEY, MILLMAN, PHEFFER, ROBINSON,
  SWEENEY, TOWNS -- read once and referred to the Committee on Judiciary

AN ACT to amend the domestic relations law, in relation to  grounds  for
  an action for divorce and for an action for separation

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Section 170 of the domestic relations  law  is  amended  by
adding a new subdivision 7 to read as follows:
  (7)  (A) IRRECONCILABLE DIFFERENCES WHICH HAVE CAUSED THE IRREMEDIABLE
BREAKDOWN OF THE MARRIAGE, IRRESPECTIVE OF THE FAULT  OF  EITHER  PARTY,
AND FURTHER ATTEMPTS AT RECONCILIATION ARE IMPRACTICAL OR FUTILE AND NOT
IN  THE  BEST  INTEREST  OF THE PARTIES OR FAMILY.  IRRESPECTIVE OF THIS
SUBDIVISION, ALLEGATIONS OR EVIDENCE  OF  SPECIFIC  ACTS  OR  MISCONDUCT
SHALL  BE PROPER AND ADMISSIBLE AS A FACTOR WHEN DETERMINING MAINTENANCE
AND PROPERTY DIVISION.
  (B) IF BOTH OF THE PARTIES BY PETITION OR OTHERWISE STATE  UNDER  OATH
OR  AFFIRMATION IRRECONCILABLE DIFFERENCES WITHIN THE MARRIAGE OR IF ONE
OF THE PARTIES SO STATES AND THE OTHER DOES NOT DENY SUCH STATEMENT, THE
COURT SHALL MAKE A FINDING AS TO WHETHER OR NOT THE MARRIAGE IS IRREMED-
IABLY BROKEN. IRRECONCILABLE DIFFERENCES ARE  THOSE  GROUNDS  WHICH  ARE
DETERMINED  BY THE COURT WHICH HAVE CAUSED THE IRREMEDIABLE BREAKDOWN OF
THE MARRIAGE AND FURTHER ATTEMPTS AT RECONCILIATION ARE  IMPRACTICAL  OR
FUTILE AND NOT IN THE BEST INTEREST OF THE PARTIES OR FAMILY.
  (1)  IF  ONE  OF THE PARTIES HAS DENIED UNDER OATH OR AFFIRMATION THAT
THE MARRIAGE IS IRREMEDIABLY BROKEN, THE COURT SHALL CONSIDER ALL  RELE-
VANT  FACTORS,  INCLUDING THE CIRCUMSTANCES THAT GAVE RISE TO THE FILING
OF THE PETITION AND THE PROSPECT OF RECONCILIATION, AND SHALL: (I)  MAKE
A  FINDING WHETHER THE MARRIAGE IS IRREMEDIABLY BROKEN; OR (II) CONTINUE
THE MATTER FOR FURTHER HEARING AND MAY SUGGEST TO THE PARTIES THAT  THEY

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03902-02-9
              

A. 5543                             2

SEEK  COUNSELING.  THE  COURT  SHALL  THEN  MAKE  A  FINDING WHETHER THE
MARRIAGE IS IRREMEDIABLY BROKEN.
  (2)  IF  ONE  OF  THE PARTIES STATES THAT THE MARRIAGE IS IRREMEDIABLY
BROKEN AND THE OTHER HAS NOT DENIED SUCH STATEMENT, THERE IS A  PRESUMP-
TION  THAT  THE  MARRIAGE IS IRREMEDIABLY BROKEN, UNLESS CONTROVERTED BY
THE EVIDENCE, THE COURT SHALL, AFTER A HEARING, MAKE A FINDING THAT  THE
MARRIAGE IS IRREMEDIABLY BROKEN. THE COURT, IN ITS DISCRETION, MAY WAIVE
A HEARING ON AN UNCONTESTED DIVORCE COMPLAINT AND ADMIT PROOF BY AFFIDA-
VIT.
  (3)  APPEAL FROM THE DECREE OF DISSOLUTION THAT DOES NOT CHALLENGE THE
FINDING THAT THE MARRIAGE IS IRREMEDIABLY  BROKEN  DOES  NOT  DELAY  THE
FINALITY OF THAT PROVISION OF THE DECREE WHICH DISSOLVED THE MARRIAGE. A
PARTY  MAY  REMARRY  BEFORE  THE  TIME  FOR  APPEAL HAS RUN IF IT IS NOT
CONTESTED THAT THE MARRIAGE IS IRREMEDIABLY BROKEN OR IF  A  STIPULATION
THAT  THE  MARRIAGE IS IRREMEDIABLY BROKEN IS INCORPORATED IN THE DECREE
FOR DISSOLUTION.
  S 2. Section 200 of the domestic relations law is amended by adding  a
new subdivision 6 to read as follows:
  6. IRRECONCILABLE DIFFERENCES BETWEEN THE PARTIES HAVE CAUSED A TEMPO-
RARY OR IRREMEDIABLE BREAKDOWN OF THE MARRIAGE.
  S  3.  Subparagraph  13  of  paragraph d of subdivision 5 of part B of
section 236 of the domestic relations law, as renumbered by chapter  884
of  the  laws  of 1986, is renumbered subparagraph 14 and a new subpara-
graph 13 is added to read as follows:
  (13) THE FAULT OF EITHER PARTY;
  S 4. Subparagraph 11 of paragraph a of subdivision  6  of  part  B  of
section  236 of the domestic relations law is renumbered subparagraph 12
and a new subparagraph 11 is added to read as follows:
  (11) THE FAULT OF EITHER PARTY;
  S 5. This act shall take effect immediately and shall apply to actions
filed prior to and pending on the effective date of  this  act,  and  to
actions filed on or after such effective date.