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Grounds For Divorce - Living Separate Pursuant to Separation Agreement

The Domestic Relations Law provides, in Section 170(6), that an action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on the ground that the husband and wife have lived separate and apart pursuant to a written agreement of separation, subscribed and acknowledged by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded, for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such agreement. A separation agreement which has not been acknowledged, cannot form the basis of a divorce pursuant to Domestic Relations L 170(6). Cicerale v. Cicerale, (1976) 85 Misc.2d 1071, 382 NYS2d 430, affd (2d Dept.) 54 App Div 2d 921, 387 NYS2d 1022.

In Londin v. Londin, (1979) 100 Misc.2d 965, 420 NYS2d 326, the Supreme Court, New York County, held defective a separation agreement which was to be used as a basis for a Dom Rel L 170(6) divorce, since it was not "subscribed by the parties and acknowledged or proved in the form required to entitle a deed to be recorded."

The separation agreement was not verified by each party, since the only signature was that of the notary public who was the attorney for both parties and who had drafted the agreement.

This defect cannot be cured by the annexation of an affidavit by the attorney notary that each party had made an oral acknowledgement at the agreement's execution, which by inadvertence was not reduced to writing.

However, since there was a subscribing witness to the execution, proof may be submitted by an affidavit of the subscribing witness so as so conform to the requirements of recording a deed.

That affidavit, having now been submitted to the court, the defect will be deemed cured, since there "appears to be no time requirement as to when such proof need be taken."

The mere allegation that the parties have been living separate and apart for more than one year after execution of a separation agreement is not sufficient to automatically entitle a party to a conversion divorce where such party has not substantially complied with the agreement's terms and conditions. Berman v.Berman (1980) 52 NY2d 723, 436 NYS2d 274, 417 NE2d 568, affg (1st Dept) 72 App Div 2d 425, 424 NYS2d 899. The plaintiff husband had moved for summary judgment, the defendant wife opposed the motion, claiming that he had not "substantially complied" with the agreement's terms regarding support. The husband did not dispute the wife's allegations, so the motion was denied. The word "substantially" as used in the statute [Dom Rel L 170(6)] was intended to avoid the need to prove literal compliance, but did not eliminate the need to prove compliance with the essentials of the agreement's provisions as a predicate to conversion divorce. The agreement or memorandum thereof must be filed with the county clerk.

Where parties have lived separate and apart pursuant to a separation agreement for the requisite period, the husband is entitled to a divorce and the wife's contention that he had not told her he would use the agreement as a basis for a divorce is without merit, since nothing in the statute requires either party to declare his intention to use or not use the agreement as a ground for divorce. Trachtenberg v.Trachtenberg (1970) 66 Misc 2d 140, 320 NYS2d 412.

It also has been held that a stipulation agreement made in open court and read on the record, to the effect that the parties are to live separate and apart in the future, is tantamount to a separation agreement, so as to provide the basis for an action for divorce under Domestic Relations Law 170(6), after the parties have lived apart for the requisite period. It has been held that a stipulation made in open court partakes of the nature of a contract, Bond v. Bond (1940) 260 App Div 781, 24 NYS2d 169, reh and app den 261 App Div 835, 25 NYS2d 1001. In the instant case, the stipulation was made in open court in the presence of a Supreme Court Justice. A written transcript was made and witnessed by the Justice before whom the stipulation was made. Thereafter the stipulation was reduced to the form of a judgment and entered by the County Clerk. Under these facts, should the wife be any less entitled to maintain an action for divorce than if the parties subscribed and acknowledged a written separation agreement? In the court's opinion, she should not. ".... [F]or the court to fail to recognize it as a basis for a divorce would do violence to the recognition in the statutory scheme 'that it is socially and morally undesirable to compel a couple whose marriage is dead to remain subject to its bonds.'" (Citing Gleason v. Gleason (1970) 26 NY2d 28, 308 NYS2d 347, 256 NE2d 513.) Martin v. Martin (1970) 63 Misc 2d 530, 312 NYS2d 520.

In Stone v. Stone (1974, 2d Dept) 45 App Div 2d 967, 359 NYS2d 351, a stipulation had been made by the parties in open court in the Family Court, wherein the husband agreed to vacate the marital premises. The Appellate Division, 2d Dept held, in wife's action for separation, that the Supreme Court had committed error by granting defendant husband's counterclaim for divorce pursuant to Dom Rel L 170(6). The Appellate Division distinguished this stipulation from that in Martin v. Martin (63 Misc 2d 530, 312 NYS2d 520), which had been held to be tantamount to a separation agreement, and therefore a sufficient basis for granting a divorce. The Appellate Division also stated that even "were the stipulation to be regarded as a separation agreement, no divorce could be granted as no record of the stipulation was filed in the office of the county clerk." (cf Becker v. Becker (1974, 2d Dept) 44 App Div 2d 676, 353 NYS2d 796, affd 36 NY2d 787, 369 NYS2d 697, 330 NE2d 646; Liebling v. Liebling (1973) 76 Misc 2d 465, 352 NYS2d 758).

Proof of Living Separate

In an action for a divorce based upon the ground that the plaintiff and the defendant have lived separate and apart for the requisite period either pursuant to a judgment of separation or a written separation agreement, substantial compliance by the plaintiff with the terms and conditions of the judgment or agreement must be shown, as well as the fact that the living apart has been uninterrupted for the requisite statutory period. Seldin v. Seldin, (1967) 55 Misc.2d 187, 284 NYS2d 679