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Grounds For Divorce: Cruel and Inhuman Treatment - Defenses To Cruel and Inhuman Treatment

Statute of Limitations

The Domestic Relations Law provides that no action for divorce may be maintained on a ground which arose more than five years before the date of the commencement of the action except where abandonment or separation pursuant to agreement or judgment is the ground.[Dom Rel L 210.]

No Affirmative Defenses

The Domestic Relations Law contains no affirmative defenses to cruel and inhuman treatment. However, the defendant may show "that misconduct by the plaintiff (the lure and attraction of another woman is a classic example) was the cause of his leaving defendant wife rather than the alleged cruel and inhuman treatment of the wife. (See Walden v. Walden, 41 AD2d 664). Bloom v. Bloom, 52 AD2d 1030 (4th Dept., 1976)

Insanity Not a Defense

Insanity is not a defense to cruel and inhuman treatment. In Pajak v. Pajak (1981, 4th Dept) 85 App Div 2d 923, 446 NYS2d 765, motion gr 55 NY2d 1035, 449 NYS2d 712, 434 NE2d 1079 and affd 56 NY2d 394, 452 NYS2d 381, 437 NE2d 1138, the court held that since there is no statutory defense to a divorce action in New York based on defendant's cruel and inhuman treatment (citing Biamonte v. Biamonte (1977, 4th Dept) 57 App Div 2d 1052, 395 NYS2d 839), and that an attempt to explain or excuse conduct, which would otherwise constitute actionable cruelty, by reason of a defendant's mental illness, cannot be justified.

The Court said that the statutory test is the effect of the conduct upon the plaintiff and that it must make it unsafe or improper for the plaintiff to cohabit with the defendant and the burden of such proof is on the plaintiff. The defendant's argument was that the defendant's conduct must be intentional and that her mental illness renders her incapable of the required intent. The Third Department held that there is nothing in the statute to indicate a requirement of intent and the Courts should not interpose a test lacking in the statute.

In an action for divorce on the ground of cruel and inhuman treatment, it must be shown that the conduct of the defendant was such that it affected the safety or propriety of cohabitation. Note that Dom Rel L 170(1) provides that conduct which endangers "the physical or mental being" of the plaintiff as renders it "unsafe or improper" for cohabitation to continue. Pierone v. Pierone (1968) 57 Misc 2d 516, 293 NYS2d 256, held that the plaintiff's testimony that as a result of his wife's acts he suffered loss of sleep, a general declination of health, nervousness and tension, unsupported by any competent evidence to that effect, falls short of the proof required in a cause based on cruelty.

In Broglio v. Broglio (1974, 2d Dept) 44 App Div 2d 705, 354 NYS2d 688, the Appellate Division held that "the law in New York does not require corroboration for proof of acts of cruel and inhuman treatment as a ground for divorce."

In Bruno v. Bruno (1974, 2d Dept) 45 App Div 2d 707, 355 NYS2d 817, the husband sued for annulment or divorce, and the wife sued for a separation. The husband was granted an annulment, and the wife appealed. The court held that although the record revealed that plaintiff had no grounds for annulment, he would, however, be entitled to a divorce on the ground of defendant wife's cruel and inhuman treatment. The Appellate Division, 2d Dept, agreed, holding the evidence to be sufficient to establish that the wife had acted in a manner rendering it improper for the parties to cohabit. The Appellate Court held, however, that it was unable to grant the husband a divorce since he was not before it on appeal as an appellant.

Although it should not be necessary to show actual physical violence to establish legal cruelty, but, if not, there must be either a reasonable apprehension of such violence or conduct of such character as seriously affects the health of a spouse and threatens permanently to impair it. Such is the view of a number of conservative decisions even though the sounder view is that conduct endangering the mental well being that makes continued cohabitation improper is obviously sufficient unless the court desires to rewrite the statute.